THE LONDON BOROUGH OF LEWISHAM v MISS C DUBBERE [2003] UKEAT 19_02_2102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 19_02_2102Case No Appeal No. EAT/19/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE LONDON BOROUGH OF LEWISHAMAPPELLANTMISS C DUBBERERESPONDENT
Before
Mr Justice Elias Mr A D TuffinDate 21 February 2003
[1]APPEARANCES For the Appellant MR C QUINN (of Counsel) Instructed By: London Borough of Lewisham Legal Department Lewisham Town Hall London SE6 4RU For the Respondent MS C LEWIS (of Counsel) Instructed By: Messrs GS & S Solicitors 181-183 Trafalgar Road Greenwich London SE10 9EH THE HONOURABLE MR JUSTICE ELIAS : This is an appeal against the decision of the Employment Tribunal at Kent in which it assessed the compensation payable to the respondent for a breach of the Disability Discrimination Act 1995 as being practically £130,000. The appellant employed the respondent as a social worker from September 1981 until the termination of her contract on 4 November 1999. Following that dismissal, the respondent presented claims to the Employment Tribunal alleging breaches of the Disability Discrimination Act, unfair dismissal, race discrimination, victimisation and asserting a claim for breach of contract.[2]All these complains were either withdrawn or dismissed save that the tribunal found there had been a breach of the Disability Discrimination Act in three respects, none of which was originally the subject of a specific complaint in the originating application. The Employment Tribunal gave a reserved decision on the 5 October 2000; unfortunately there was then a considerable delay before the remedies hearing. That took place on 18/19 June 2001 and 15 October 2001 and the tribunal decision was sent to the parties on 12 November 2001. The council did not appeal the findings on liability. Accordingly, we must act on the premise that the Tribunal's conclusions were open to it as a matter of law. The Facts[3]Certain essential facts are set out in the decision of the Employment Tribunal. They summarised the position as follows:
"16 Ms Dubbere became a specialist in the field of child and family social work. In 1987, she left the respondent's employment to work for another local authority. On 3 January 1990, the applicant recommenced employment with the respondent's in the Children and Family Social Work Department. The work was tough and demanding but the applicant enjoyed it. She was very dedicated to her work and was good at her job. 17 In 1996, she was threatened and harassed by a client who discovered her home address. In order to allay her justifiable fears about her safety, the applicant wished to move and the respondent assisted her with her removal costs. The applicant transferred to the respondent's social work office at St Paul's House in Deptford. 18 On 28 January 1998, the applicant was conducting an interview with a client at St Paul's House concerning child protection. She was violently assaulted by the client who scratched her face, kicked and punched her chest and back, knees and shoulders. The assault caused the applicant to suffer post traumatic stress disorder, and also physical injuries. The assault caused continuing pain in her knees and shoulders. 19 The applicant commenced a sickness absence due to the assault and never returned to work. 20 It is the respondent's normal practice to provide six sessions of counselling for employees who have suffered a traumatic incident. The applicant's immediate line manager was Mr. Collymore. Her manager was Mr. Haworth. Mr Haworth duly arranged for the applicant to have six counselling sessions with Mr. Bass, an independent counsellor. Those sessions were paid for by the respondent. In fact, unknown to Mr Haworth at the time, the applicant had arranged a seventh counselling session, which Mr. Haworth, later agreed to pay for, although he had not given prior authorisation for that session. 21 On 8 March 1998, Mr. Bass wrote to Mr. Haworth informing him that the applicant was anxious and stressed, that she was unable to focus and showed phobia signs of going out and meeting people. In his opinion, her psychological state warranted attention over a three month period. He recommended that she continue to receive counselling of 1 hour per week at a cost of £30 per session for three months, her progress being reviewed after nine weeks. 22 However, Mr Howarth decided not to authorise payment for any additional counselling sessions. He decided not to seek authority from his manager to authorise payment for additional counselling. 23 The applicant believed that the assault which she suffered could have been avoided if certain steps had been taken by the respondent. For reasons that we set out below, it is not for this tribunal to comment on that suggestion. The applicant expressed her views in a letter to Mr. Haworth dated 2 April. She also expressed her disappointment at what she described as the delay in providing her with professional guidance as to what her options were in respect of the assault. She asked what actions had been taken to ensure her safety once she returned to work. She expressed a desire to be included when plans were being drawn up which may affect her return to work in a safe and protected environment. She wanted to be instrumental in any such plans and discussions with regard to the possibility of her working elsewhere in the Social Work Department. 24 On 23 April Ms Peacock, Acting Group Manager, replied to the applicant assuring her that the assault on the applicant was being taken seriously. Ms Peacock informed the applicant that Mr. Haworth had held violence to staff planning meetings and reminded her that he had been in touch with her on several occasions and that he had arranged counselling for her. 25 Mr Haworth informed Mr. Bass and the applicant of his decision not to authorise further counselling. Mr Haworth wrote to Mr. Bass on 8 June. 26 On 16 June, the applicant wrote to Mr Haworth saying that she was appalled at his actions in stopping her counselling. Her letter continued: 'It is either that you don't accept I am ill or that you are non-caring. I have deduced from your letter that there is a lack of management care and denial of service to me as of your employees. It is like abandonment that makes me feel undervalued and unwanted. It feels like harassment and another form of negligence. I am feeling threatened as well, as you have increased my stress level fourfold…. I want you to know that I hold you fully responsible and I want to believe that you have set me up. All that I am requesting is equal treatment and that the respondent take responsibility for its work safety while on duty. May I request that you reconsider your decision.' "
[4]Understandably, Mr Haworth took umbrage at the tone of the letter. He replied by a letter in which he said that counselling had been provided in accordance with council policy and that further counselling should be provided through the GP. Ms Peacock also replied to the letter to similar effect, whilst reassuring the applicant that the council were concerned about her health and wished to facilitate her return to work.[5]There were in fact various meetings with the applicant and various medical reports were produced dealing with the state of her health at various times. The Tribunal found, however, that at all the meetings where her return to work was being considered, the applicant was unable to focus properly on the discussions as a consequence of the mental impairment from which she was suffering.[6]The applicant remained absent and eventually it came to a point where the council took the view that she was plainly not going to return to work in the foreseeable future. Accordingly, they complied with the relevant procedures and dismissed her on grounds of capability. The tribunal held that the dismissal was fair. However, they did find certain breaches of the Disability Discrimination Act, summarised in the following paragraphs of its decision:
"83 In our view, the arrangements made by the respondent in relation to counselling, did place the applicant, as a disabled person, at a substantial disadvantage in comparison with persons who are not disabled, because six sessions of counselling were not sufficient to assist her recovery from the traumatic incident. As we have recorded, Mr. Bass specifically requested the respondent to fund further counselling sessions. 84 We have next considered whether the respondent took such steps as were reasonable in all the circumstances of the case, for it to have to take in order to prevent its arrangement about counselling, placing the applicant at a substantial disadvantage. We have considered that matter by reference to the criteria in sections 6(3) and (4). In our view, a reasonable step for the respondent to have taken was to have authorised additional counselling for the applicant up to a period of three months, as recommended by Mr. Bass. This was a practicable step for the respondent to take. In the light of Mr. Bass' request, it was possible that the additional counselling as relatively modest, and within the respondents financial recourses…. 86 While it is clear to us that the respondent's decision to limit the number of counselling sessions in accordance with its usual arrangements injured the applicant's feelings, we have formed no view about whether the refusal had any effect on the applicant's disability. In our view, the correct approach at the remedies hearing will be for us to consider the extent to which, if any, the limiting of the counselling sessions caused the applicant to lose the chance of making a recovery from her disability."
[7]The tribunal also found that the council had infringed the Act by failing to involve the applicant actively in discussions about safety improvements, and in failing to put in writing the security improvements that had been effected, or the detailed proposals to facilitate the applicant's return to work. They found that given her mental state, it was important for this step to be taken to enable her to give proper consideration to these matters. Finally, the tribunal also held that it was a breach of the Act for the council not to have taken specialist advice to advise her on any steps that could be taken to allow the applicant to overcome her disability. The remedies hearing[8]At the remedies hearing, the focus of attention was almost exclusively upon the consequences of failing to pay for further counselling, although the other matters were mentioned in the context of the award for injury to feelings.[9]There were only three witnesses before the tribunal. Miss Dubbere gave evidence by way of a witness statement but she was not cross-examined on it. The tribunal then heard evidence from two experts, Dr Dunn for the respondent and Dr Baggaley for the appellant. Both those experts produced reports on which they were cross-examined.[10]Dr. Dunn had concluded that the withdrawal of funding had significantly affected the chances of the applicant returning to work. He said this:
"A sense of injustice and anger had already been instilled by the time her employer refused to pay for further counselling and formally told her that she was responsible for her own health. Once a formal standoff had occurred then the situation became much harder to retrieve and it was at this point that her chances of recovery deteriorated. This is not to say that her employers should have paid for indefinite counselling. In fact there is little evidence that counselling directly reduces the symptoms in Post Traumatic Stress Disorder. It fosters a supporting relationship enabling recovery to take place. The chances of recovery would have been improved significantly if Ms Dubbere's employers had been seen to be trying to get her the best treatment available for her Post Traumatic Stress Disorder. Instead they portrayed themselves as removing the only professional activity interested her Psychological care as indifferent to her suffering. The result impasse, the suggestion of racial prejudice, her subsequent sacking have all compounded the difficulty in her treatment."
A little later he summarised the effects of the unlawful discrimination on her ability to work as follows:
"Perceived withdrawal of psychological support increases the likelihood of a patient becoming chronically incapacitated with Post Traumatic Stress Disorder. I would have expected her to have returned to work within one year in some capacity (though not in Deptford and she would not be expected to see clients with a history of violence). She was suffering from Post Traumatic Stress but there were factors predictive of a good outcome: the violence was predictable, and she was not alone. She has a stable personality, supportive family. Regular counselling would have enabled her to come to terms with the trauma and allow for spontaneous recovery. The abrupt loss of funding of her counselling and subsequent mishandling of the relationship with Ms Dubbere would have altered her view of the perceived support from her employers and made her symptoms chronic."
In fact in his oral evidence he did not maintain the position that she would have returned to work within a year but said that there was a 40 to 50% chance that she would.[11]Dr Baggaley took a very different view. He concluded that the applicant's psychological disorder was caused by the assault and that the withdrawal of funding had no effect whatsoever on her prospects of returning to work. He considered that the matters in respect of which the tribunal had found discrimination were trivial in comparison with the circumstances of the assault and the refusal to let her retire on medical grounds.[12]The tribunal set out what it considered to be the material parts of the evidence Dr Dunn and Dr Baggaley and, having set out these contending positions, it then concluded that Dr Dunn's evidence was to be preferred. It summarised its reasons for that view at paragraph 13:
"The tribunal prefers Dr Dunn's opinion because, in our view, it is more consistent with the contemporary evidence. The comments of those treating the applicant, and her own reaction to the withdrawal of counselling in our view supports Dr Dunn's conclusion that the applicant was likely to make a reasonable recovery from PTSD before the funding for the counselling was withdrawn. Dr Baggaley stated that Dr Onyama does not mention the issue of counselling. However, as we have quoted, Dr Onyama does say that: "
The critical factor underlying symptom persistence is deep rooted resentment at what she perceives to be the injustice and indifference of her employers to her plight." In our view, that supports Dr Dunn's conclusion. While Dr. Onyama does not refer specifically to the withdrawal of funding for counselling, that was clearly as matter that fuelled the applicant's resentment of what she perceived to be 'the respondent's injustice and indifference to her plight' The tribunal accepted Dr Dunn's conclusion that, but for the discrimination that we found occurred, there was a 50% chance that the applicant would have returned to work in some capacity on a comparable salary within about one year after the assault, and therefore that she would not have been dismissed."[13]The tribunal then set out its calculation of loss. Past loss of earnings was agreed at £43,715.41, future loss at £79,950.36, loss of pension at £30.334.60, and loss of a pension lump sum at £8,117.51. This was reduced by 50%. The tribunal then added sums for the fact that the posttraumatic stress disorder had become more severe; for injury to feelings; for loss of congenial employment; and interest. The total sum came to just short of £130,000. Grounds of appeal[14]There were numerous grounds of appeal advanced. We think that they can fairly be considered under four heads. First, Mr Quinn contended that the decision was simply perverse; it was impossible for any tribunal to find that such major losses flowed from such relatively minor acts of discrimination. Second, he said that the tribunal had wholly failed to have regard to the claimant's physical injuries and the prospects that she would have been unable to return to work in any event because of these injuries. Third, he submitted that Dr Dunn had not properly assessed the effects of the unlawful discriminatory act on her health as distinct from the general antipathy which she displayed towards the council as a result of what she had wrongly perceived as being a whole series of unlawful acts. Finally, he contended that it was in any event perverse for the tribunal to prefer the evidence of Dr Dunn to that of Dr. Baggaley. We shall consider each of these matters in turn. We do, however, bear very firmly in mind the limits of our jurisdiction. As Ms Lewis for the applicant properly reminds us, we must not substitute our view for the tribunal simply because we consider that the award seems high; nor can we interfere on the grounds that we would have assessed the evidence differently. We must be able to identify a clear error of law. The decision to award so much compensation must have been perverse.[15]Mr. Quinn submitted that it was simply bizarre that the applicant should be awarded this amount of compensation. In the circumstances he said that the decision of the tribunal was plainly perverse. It was absurd to think that the counselling provided by Mr. Bass could be of such material significance. He on his own admission had no specialist experience of PTSD, and the principal function of her counselling was to provide the applicant with sympathetic support. Moreover, he referred us to the letter written to the Criminal Injuries Compensation Authority by Mr. Bass on behalf of the respondent in which she claimed compensation for her injuries. In that report, as Mr. Quinn points out, there is no reference specifically to the adverse consequences of withdrawing the payment for the counselling session. Indeed, Mr. Bass confirmed in evidence that he had in fact continued to provide counselling for the respondent, albeit at the applicant's expense.[16]In our view this argument is based on a false premise. The tribunal did not find that the losses flowed from the fact that the applicant did not receive additional counselling. Rather, as the extract from the report of Dr Dunn set out above indicates, it was the symbolic effect of refusing to extend the funding which caused the psychological damage exacerbating the applicant's difficulties. The tribunal summarised the position in paragraph 9 of its decision:
"The counselling was important because it fostered a non-specific supportive relationship, but its withdrawal seemed in inculcate an idea in the applicant that the respondent was very uncaring. This perception made it very much more difficult to create the kind of supportive environment that is required to recover from PTSD. The period prior to the withdrawal of funding for counselling represented a window of opportunity for the respondent to provide the kind of support that would promote the applicant's recovery. Once that window of opportunity had been closed, the applicant's PTSD became chronic, and it was too late for steps to be taken to promote her recovery."
Accordingly, the particular action was not in itself important; it was the applicant's perception that she was being treated in an unsympathetic way which caused the loss. We therefore reject this particular ground of appeal. Ignoring the applicant's physical injuries.[17]Mr Quinn submits that there is no reference in the decision itself to the applicant's physical state of health, and yet there were numerous indications in the evidence that she may very well have never returned to work because she was physically unfit to do so, even if her mental state had been satisfactory. Moreover, if she would have been dismissed in any event because of the doubts as to whether she would in the foreseeable future have been fit to return to work, then no loss would have flowed from the acts of unlawful discrimination in any event.[18]We were referred in particular to the following aspects of the evidence which demonstrated that the applicant herself was deeply troubled by her physical state of health:(1) By a letter dated 23 March 1998, shortly after the assault, the applicant wrote to Mr Haworth and said that the accident had left her "physically impaired, with severe spinal pain, leg, arm and facial bruises". She also stated, however, that the psychological harm had been more extensive. Later in a letter of the 2 April she referred to the fact that the assault had caused damage to her lumbar spine and lacerations to her lower body.(2) Her GP confirmed in a letter of 12 December that she had received physical injuries from the assault. She said this:
"Her problems are twofold, one is depression and the anger that she has towards the system, and the second is the physical injuries sustained as a result of the alleged assault. As I have said, I do not think with these problems she is going to return to work for a very long time." (3) In a further letter dated 10 May 1999 her GP stated that the applicant was neither emotionally nor physically fit to return to work and that she had been treated for pain in the right knee and hypertension. (4) The applicant had been seeking early retirement on grounds of ill health. Indeed, it was one of her strongest grievances in her legal claim that she had not been allowed this. Dr Spencer, the occupational health physician, had recommended that she was not permanently unfit, partly as a result of two specialist reports, which had assumed that her knee problems might be alleviated. However, the applicant was seeking to persuade Dr. Spencer to change his view. In a note dated 1 July 1999 he reported this; "
Ms Dubbere again attended with John Collins. They wanted me to change my recommendation that she is not permanently unfit. They seemed to accept that her post traumatic stress disorder was unlikely to last until retirement age but felt that her knee problems would cause sufficient disability to stop her from working as a Social Worker indefinitely. She complains of constant pain and stiffness in both knees. When asked how far she could walk she said from the entrance to Wearside Depot to the Occupational Health Department (which is about 200 yards). On direct questioning she said her knees give way on stairs. On examination there is not visible abnormality in the knees and no swelling. Active movement in both joints was 0% - 10% only and this associated with severe pain. Any attempt to palpate the patellae, joint lines, ligament attachments or even her feet when attempting passive movements caused severe pain." Accordingly at this time it was her own case that whatever the long term psychological effects, the physical effects themselves would prevent her from ever returning to work. (5) In a letter dated 2 April 2001 she requested the manager of the Lewisham pension team to grant her early retirement both because of her stress related condition and her physical disability. In the course of that letter she said this:
"My present mental and physical condition resulted from a violent attack four years ago, during which I sustained serious physical injuries and have since become very depressed. I am experiencing severe mental stress; physical pains to my legs, hips and spine; and am unable to focus for any length of time. I am now lacking the will to face many situations. I often want to just give up as I feel I am too physically and mentally incapacitated to get on with my life."
[19]Whether or not these injuries were sustained as a result of the assault itself, Mr Quinn submits that there is plainly a very serious issue as to whether the applicant would ever have come to work again even if there had been no breach of the Disability Discrimination Act, and this would affect both future loss and compensation for loss of congenial employment.[20]Ms Lewis for Ms. Dubbere accepts that there is no reference to this argument in the decision; the possible causal effect of the physical injuries is simply not addressed. However, she makes two points about this submission. First, she says that there is a close interrelationship between physical and psychological injuries, and the latter would have exacerbated the former. Second, she says that Dr Dunn saw the medical records of the applicant and took them into account when expressing his opinions. In our view neither of these observations meets the point. Of course, it is true and we accept that physical injuries may be affected by a patient's psychological state of health; but there is simply no evidence to show that the particular physical disabilities from which the applicant was suffering were so affected. Nor do we accept that Dr Dunn had these matters in mind at all. He was simply giving his view as a consultant psychiatrist on the impact of the council's actions on her psychological state. He was not qualified to assess the likely impact on her future employment of her physical injuries and did not purport to do so. In our view this is a serious weakness in the tribunal's decision. It was a matter which had been drawn to their attention and yet it is not dealt with in their decision. Potentially, it could very significantly affect the amount of compensation awarded. We therefore uphold the appeal on this ground. Dr Dunn did not specifically assess the loss flowing from the unlawful acts.[21]Mr. Quinn submits that Dr. Dunn's report suggests that the psychological difficulties all resulted from the failure to extend funding for counselling, whereas in fact it was significantly affected by a whole series of other matters, such as the applicant's feeling that the council should have done more to stop the assault occurring at all, and their later refusal to grant her early retirement on grounds of ill health.[22]For the most part we do not accept these submissions. It is clear from Dr Dunn's report that he fully appreciated that she already felt anger and a sense of injustice directed at the council by the time the decision not to extend funding was taken. He recognised that this factor alone might have prevented her return to work; hence the assessment of a 40 to 50% chance only. As to the matters which occurred after the funding decision, they would not in any event have affected her chances of returning to work. The thrust of Dr Dunn's opinion was that there was this window of opportunity which was lost thereafter. Any later actions or decisions which further inflamed a sense of injustice would not change the position.[23]We recognise that there were, however, already certain other matters about which the applicant was complaining even before the decision not to extend funding had been taken. In her letters of the 23 May and the 2 April, she complained that the council had not taken steps to take action against her assailant, nor had they provided her with professional guidance as to the legal steps she might take arising out of the assault. These matters are not specifically mentioned in Dr Dunn's report, but we think that on a fair reading of it they would be part of the reason for the anger and irritation which, as we have said, Dr Dunn recognised had already existed when the funding decision was taken.[24]In the context of this argument Mr. Quinn put some emphasis on the chairman's notes of evidence and in particular a comment by Dr. Dunn to the effect that it was not possible to isolate the effects of particular items of discrimination when you have the initial trauma. Mr. Quinn submitted that this showed there had been no attempt by Dr. Dunn to try to identify the extent to which the withdrawal of funding, as opposed to other matters, contributed to the deterioration of the applicant's state of mind. The comment is somewhat cryptic, but in any event in our view it would not be right to read too much into that particular answer. Dr. Dunn had made his basic position clear in the report. He reached the conclusion that the withdrawal of funding created the formal standoff, which made the situation that much harder to retrieve. It was this that convinced the applicant, rightly or wrongly, that the council was indifferent to her suffering.[25]In our judgment Mr Quinn has not demonstrated any defect in Dr Dunn's report as would have required the tribunal to disregard it. Accordingly, we reject this argument. It was perverse to accept Dr Dunn's evidence.[26]Finally, Mr. Quinn submits that the tribunal reached a perverse conclusion in preferring the evidence of Dr. Dunn to that of Dr. Baggaley. Mr Quinn points out that there were certain relevant records, and in particular GP notes, which Dr. Dunn did not see when he drafted his report. In particular, he submitted his report on a wrong factual premise since he wrongly assumed that there had been no history of psychiatric illness. By contrast, he submits that Dr. Baggaley did carefully consider all relevant materials in the drafting of this report. (He also sought to suggest that the Dr Baggaley was better qualified, but plainly both experts were eminently qualified and there is nothing in that point.)[27]In our view this challenge is not sustainable. The tribunal in terms asked whether the aspects of the applicant's previous medical history which he had not considered made any difference to Dr Dunn's conclusions, and he said not. We accept that it is not ideal that a conclusion of that kind should be expressed by Dr. Dunn in the witness box rather than as a result of a considered analysis of the whole history. It was a critical assessment which was dealt with in a less than satisfactory way. But we do not think that this is a basis for saying that tribunal should have ignored this evidence or should have failed to give it such weight as it thought proper. It is one of the functions of the tribunal to decide what evidence it will accept and what it will reject, and we do not consider that in this case the tribunal acted improperly or unlawfully in choosing to accept this evidence of Dr. Dunn. Conclusions.[28]In the circumstances we have concluded that the appeal succeeds on one ground. It seems to us, however, to be a potentially significant one. The failure to consider the effect of the applicant's physical injuries is a vital matter which potentially could dramatically affect the level of damages in this case. We have given careful consideration to what the consequences of our findings ought to be. We accept, as Miss Lewis observed, that there may be an interrelationship between the psychological and physical injuries in a case of this kind, and it is not always easy to disentangle the influence of one upon the other. We also consider that it would be difficult for the same tribunal to consider this argument untainted by its former assessment. In the circumstances, we have concluded that this matter ought to be referred to another tribunal to consider the question of remedies afresh. That tribunal will also be able to take into consideration the case of Vento v Chief Constable of West Yorkshire Police [2002] EWCA (Civ) 1871 , where the Court of Appeal has laid down the approach which should when determining the assessment of compensation for injury or loss which is neither physical nor financial. Had we concluded that the tribunal's decision was otherwise unassailable, we would have heard further argument from the parties as to whether the compensation awarded for non financial loss was in accordance with the principles enunciated in that decision (which was not reported until after the close of the oral submissions in this case). However, in the circumstances there is little to be gained from any analysis from the tribunals assessment of these particular sums, and we have therefore not thought it necessary to request further argument on this point.[29]Accordingly, for the reason given above, we uphold this appeal and remit the matter of remedies to be reconsidered by another tribunal.