MRS S MASSEY v AMICUS [2006] UKEAT 0223_04_0709

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0223_04_0709Case No Appeal No. UKEAT/0223/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS S MASSEYCLAIMANTAMICUSRESPONDENT
Before
His Honour Judge Peter Clark Mr A E R Manners Mr D WelchDate 7 September 2006
[1]APPEARANCES For the Claimant MR JAMES LADDIE (of Counsel) Instructed by: Messrs Zermansky & Partners 10 Butts Court Leeds LS1 5JS For the Respondent MR PHILIP JONES (of Counsel) Instructed by: Messrs Simpson Millar 165 The Broadway Wimbledon London SW19 1NE SUMMARY Trade Union Membership Compensation for unjustifiable discipline by trade Union - injury to feelings; personal injury; aggravated damages; contributory conduct. HIS HONOUR JUDGE CLARK Prior to its amendment from 31 December 2004 s 67(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) provided that where a complaint by an individual under s 66 of the Act, that she had been unjustifiably disciplined by a trade Union had been declared well-founded by an Employment Tribunal (ET), the Claimant could make application to the Employment Appeal Tribunal (EAT) for compensation to be paid by the Union as provided for in s 67(1).[2]On 3 April 2003, Mrs Stella Massey, who we shall call the Claimant, presented an Originating Application to the Leeds ET complaining of unjustifiable discipline by the Respondent Union, then UNIFI, of which she was a member. By an Amended Application dated 20 June 2003 she raised seven alleged acts of unjustifiable discipline. The claims were resisted and came on for hearing before an ET chaired by Mrs C Lee in October and November 2003. By a reserved decision with reasons dated 9 January 2004, that Tribunal upheld three of her seven complaints. Against that decision the Union appealed to the EAT. That appeal was heard on 4 June 2004, by a division on which I sat with Mr Jacques and Professor Wickens. By our judgment delivered on 3 August 2004 we allowed the appeal in part, upholding 2 of the Claimant's complaints. They were:(1) a motion of no confidence in the Claimant passed by the Union's Royal Bank of Scotland National Company Committee (NCC) on 25 September 2002; and(2) a decision by the Appeal Committee (AC) of the Union made on 7 January 2003 debarring the Claimant from holding Union office for a period of two years.[3]On 21 June 2004, the Claimant made a protective application to the EAT for compensation under s 67(2). At paragraph 36 of our judgment we gave directions for the assessment of compensation in respect of the two complaints which we upheld. Thereafter a compensation hearing was fixed for 25 November 2004. Unhappily, shortly before the date fixed for that hearing, the Claimant suffered a stroke on 15 November 2004. It has had a serious effect on her capacity such that(a) the hearing did not take place finally until 18-19 July 2006, and(b) she has not given evidence before us. Instead, we heard oral evidence from her husband, Eugene Massey; from the joint medical expert, Dr Sambrook, a highly experienced Consultant Neurologist and from Mr Ed Sweeney, who was at all material times General Secretary of UNIFI until that Union merged with Amicus in October 2004. Since the merger he has held the post of Joint Deputy General Secretary of Amicus. Background[4]The Claimant took an active part in the affairs of her Union, first taking office as an elected member of the National Executive Committee (NEC) in 1992. She had been employed by NatWest, which later merged with RBS, retiring in June 2001. In February 2002 she was re-elected to the NCC.[5]In 2002 the Union, with the knowledge of the Claimant, negotiated an agreement with the Bank that it would suggest "preferred candidates" for election as Trustees of the Bank's Pension Fund.[6]By 6 June 2002 the Union had received applications from members seeking preferred candidate status in the forthcoming elections. The Claimant did not apply. On 11-12 June, at an NCC meeting which the Claimant did not attend, a decision was taken that three UNIFI candidates would be preferred, all to be "active" (as opposed to retired) members of the Pension Scheme and the Union would support 2 Group Pensioners' Association (GPA) candidates. The Leeds ET accepted that this decision precluded the Claimant from preferred candidate status (although she had not applied therefor). The three UNIFI preferred candidates, Ms Shenton, Mr Holly and Mr Bowie were all members of the NCC. Subsequently, Mr Martin, vice chair of the NCC replaced Mr Bowie as a preferred candidate. Ms Shenton was the Chair of the NCC.[7]In all, some 91 candidates put themselves forward for election, including the Claimant. Each was required to submit a pen portrait of themselves to be sent to the electorate. The Claimant's, after amendment by the Bank, read as follows:
"Pensions are under increasing attack. Until now we have had "
Nominated Trustees". We now have "Preferred" candidates, but I urge you to look beyond these and vote for an independent trustee." While working part-time for NatWest I have also successfully managed a property investment business and share portfolio. I have been deeply involved in pensions issues, and have spent ten years on NWSA Management Committee, UNIFI Executive and NatWest European Council. I recognise the value of independent judgment. The pension fund does not belong to the Bank, the Unions, or even the Pensioners' Committee. It actually belongs to you, the staff, ex-staff and pensioners, to whose interests I offer total commitment."[8]The candidates' pen-portraits were sent out by the Bank on 2 September; Ms Shenton promptly complained to the Union about the contents of the Claimant's pen-portrait. On 6 September, Mr Sweeney wrote to the Claimant as follows:
"Dear Stella It has been brought to my attention that you are standing as an independent candidate in the current election for Member Nominated Trustees of the RBS Pension Fund. I understand that you were present at several of the Royal Bank of Scotland National Company Committee and General Purposes Committee meetings where decisions were taken on nominating the union's preferred candidate in these elections. I also understand that at no time during this process did you seek a nomination as the union preferred candidate in these elections. Furthermore, you did not inform your National Company Committee colleagues of your intention to stand as a Member Nominated Trustee. Given your position as an NEC member representing the Royal Bank National Company Committee, I am requesting that you withdraw your nomination forthwith."
[9]There then followed strong-minded correspondence between the Claimant and Mr Sweeney. Formal complaints were made by Ms Shenton and others; the no confidence motion was passed on 25 September; finally at a disciplinary hearing held before the AC on 7 January 2003, which the Claimant did not attend, she was debarred from office for two years. We should add that the five preferred candidates were returned. The Claimant polled the next highest vote, but was unsuccessful. Certification Officer Proceedings[10]On 3 July 2003 the Claimant made a separate complaint to the Certification Officer, who has a general jurisdiction to entertain complaints by Union members of a breach by the Union of its rules.[11]We have been shown a letter from the Certification Office addressed to the Union's solicitors and copied to the Claimant's solicitors dated 6 October 2004, setting out some 17 complaints of breaches of Union rules, centring on events following the Claimant's decision to stand in the Pension Trustee election in September 2002. Mr Laddie fairly described those complaints as relating to procedural matters. The Certification Officer hearing, originally scheduled for 17-18 January 2005, has, we understand, been adjourned until after we have delivered this remedies judgment.[12]We have been careful not to trespass on the Certification Officer's jurisdiction and the complaints before him, save in one respect only. That relates to the 6 th complaint before the Certification Officer, namely that the Claimant was not given advance notice of the censure motion against the Claimant passed by the NCC on 25 September 2002. We feel able to do so because(a) that fact bears on our considerations and(b) Mr Sweeney agreed in evidence before us that such notice ought to have been but was not given to the Claimant. The Issues[13]Four specific issues are raised before us in this remedies exercise. They may be summarised under the following heads;(1) Injury to feelings(2) Aggravated damages(3) General damages for Personal Injury(4) Contribution General overview[14]Before turning to the individual issues raised, we should set out the stance taken by the parties. The scheme of compensating Claimants in Mrs Massey's position under s 67 TULR(C)A provides for a minimum award, in this case, of £5,600 and maximum award of £60,100 (s 67(8)). Mr Laddie contends for the maximum; Mr Jones for the minimum award.[15]It is right to say that in the few decided EAT assessment of award cases to which we have been referred, namely Beaumont v Amicus (EAT. 4 August 2004. UKEAT/0122/03/MAA. Unreported]; Bradley v NALGO [1991] IRLR 159; Day v SOGAT [1986] ICR 640 and Sanders v BFAWU [1986] IRLR 16, on two occasions compensation did not exceed the minimum amount. However, we approach this case on its facts as we find them, applying the principles of law as we understand them. Against that background we turn to the issues. Injury to feelings[16]It is common ground between counsel that compensation for injury to feelings caused by the unjustifiable discipline found is recoverable in principle.[17]Mr Laddie submits that the guidance provided by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police (No. 2) [2003] ICR 318 applies to the statutory tort arising in this case. Mr Jones contends, by reference to a statement made by the learned editors of Harvey on Industrial Relations and Employment Law, vol. 2, Div. M, paragraph 3283, unsupported by authority, that conceptually there are differences between sex and race discrimination and unjustifiable discipline, in that in the former the victim is treated less favourably simply because of what he is or thinks, whereas unjustifiable discipline is a reaction to something the Claimant chooses to do or refrain from doing. It is suggested that the degree of humiliation felt in the case of unjustifiable discipline is likely to be far less than in other cases of discrimination.[18]We do not entirely follow that distinction. We prefer the approach advanced by Mr Laddie. Unjustifiable discipline is akin to victimisation under the sex, race and disability statutes. What has to be compensated is the injury to the Claimant's feelings attributable to the statutory tort committed in each instance. There can be no rule of thumb that the degree of humiliation felt by Mrs Massey as a result of the 25 September no confidence motion and her disciplining by the AC on 7 January 2003 is more or less than, say, the racially abused black man or the sexually harassed woman. Each case is highly fact-sensitive.[19]However, in making our assessment we must be careful to disentangle the two relevant tortious acts from other events for which the Claimant is not entitled to be compensated but which in fact have contributed to her injury to feelings. In particular, the five other complaints of unjustifiable discipline which failed; her complaints of breach of Union rules now before the Certification Officer; the stress of that and the present litigation; the criticism and anger levelled at her by her colleagues on the NCC after she put herself forward in the Pension Trustee election without informing them of her intentions and the contents of pen-portrait which the Leeds ET (Reasons paragraph 26) found, albeit made in good faith, challenged the impartiality of the preferred candidates drawn from the NCC. Finally, we discount from our assessment the apparent ostracism of the Claimant by her fellow members when she attended the TUC in September 2004.[20]On the other hand we accept, from the measured evidence given by Mr Massey and the impression formed by Dr Sambrook that the Claimant, whose standing in the Union and participation in its affairs was of great personal importance to her, that she was, in Dr Sambrook's view, mortified by what happened to her on the two occasions of unjustifiable discipline; being barred from office was a serious event from her perspective; she felt a sense of frustration that the wrongs done to her were not put right and what followed was a cumulative process. She received no apology from the Union. Mr Sweeney told us that he would like to apologise to her but on legal advice felt unable to do so whilst the Certification Officer proceedings remained unresolved. We are not much impressed by that explanation for the lack of an apology for these two acts of unjustifiable discipline, so found by the ET and upheld by the EAT, which do not form any part of the specific complaints to the Certification Officer.[21]We have considered the Vento guidance. Mr Jones submits that this case falls towards the top end of the lower bracket, suggesting an award in the order of £4-5,000; Mr Laddie contends that it falls into the higher bracket, advancing a figure of £20,000. Having invited counsel to put forward their figures, we agree with neither. In our view this case falls towards the lower end of the middle band; the proper award for compensation for injury to feelings on the facts of this case is £7,500. Aggravated Damages[22]Again it is common ground between counsel that aggravated damages are in principle recoverable in a case of unjustifiable discipline where the Respondent has behaved in a high-handed, malicious, insulting or oppressive manner. Alexander v Home Office [1988] ICR 685, 692F-693B, per May LJ, referring to House of Lords authority there cited.[23]Mr Laddie submits that the facts here bring this case within that description and that a separate award of aggravated damages is appropriate. He relies on the following factors:(1) in disciplining the Claimant for her pen portrait, the Union was punishing her for participating in the democratic process underpinning its foundations. Mr Sweeney acknowledged, in cross-examination, her right to stand for election as a Union member.(2) the correspondence discloses a concerted campaign to "have the Claimant's head" and that the General Secretary was aware of it.(3) the act of unjustifiable discipline on 25 September was aggravated by the failure to give notice to the Claimant of the no confidence motion (the one point of overlap between this case and the Certification Officer proceedings to which we have referred)(4) the finding by the Leeds ET (Reasons paragraph 6(34)) that part of the reason why the Claimant was disciplined by the AC was that she had raised procedural complaints.(5) in conducting this litigation the Respondent had (a) raised an issue before the ET as to the Claimant's good faith, an issue on which the Union failed and, submits Mr Laddie, was bound to fail and (b) that having suggested in his witness statement for the purpose of this hearing that the Claimant had shown contempt for the Union in failing to engage with the internal disciplinary process, Mr Sweeney then withdrew those parts of his written evidence under cross-examination. We agree with Mr Laddie that in this respect Mr Sweeney proved a less than satisfactory witness.(6) the failure to apologise and the unsatisfactory, as we have found it to be, reason given by Mr Sweeney for the absence of an apology, that is the ongoing Certification Officer proceedings.[24]We have considered those factors, individually and cumulatively, but we accept Mr Jones's submission that viewed overall, the Respondent's conduct in this case is not such as to attract an award of aggravated damages. It does not pass the threshold. Consequently, we make no award under this head of claim. Personal Injury[25]We begin with our assessment of general damages for personal injury on the basis that the Claimant's stroke in November 2004 was wholly and, if necessary, foreseeably caused by the two unlawful acts of unjustifiable discipline.[26]She was born on 15 August 1946. Dr Sambrook, in his report dated 6 February 2006, noted that on 15 November 2004 she was admitted to hospital with a headache and sensory symptoms over the left side of her body. Her speech was slurred, she was confused, and had weakness on the left side of her face. Visual problems were noted, attributable to loss of sight in the right half of the visual field. A CT scan showed features consistent with infarction affecting the right side of the brain, mainly in the temporal and occipital regions.[27]She was discharged on 13 December 2004. In March 2005 she was seen by Dr Shakir, Consultant Physician, who noted that she still had major cognitive problems and an obvious visual field deficit. She was confused by simple household tasks.[28]When seen by Dr Sambrook in February 2006 she had partial loss of the right half of her visual field. She remained forgetful, although her short term memory had improved. She still experienced transient pins and needles over the left side of her body, head and face. She no longer drives.[29]Dr Sambrook found on testing that she had lost approximately 80% of the right half of the visual field in each eye.[30]He was of the opinion that she had made a good but not complete recovery. She is not left with any motor problems. Her mental confusion has improved but she has not fully recovered. She will be left with permanent residual memory problems.[31]We have been referred by counsel to the JSB Guidelines for the Assessment of General Damages, 7 th Edition, under the section headed Head Injuries – Brain Damage. It is common ground that this case falls within the category of Moderate Brain Damage, in which the range of awards is sub-divided into 3 bands. Mr Laddie seeks to place this case into the top of the second band; he invites us to assess damages for Personal Injury in the gross amount of £80,000. Mr Jones puts the case in the third band; his bracket is £25-30,000.[32]Confident that Mr Laddie has not underestimated the value of the claim nor Mr Jones overstated it, we have reached our own independent assessment, led, it has to be said, by this Judge's experience of Personal Injury litigation in the civil courts. Our figure for General Damages is £50,000.[33]However, that is far from the end of this part of the claim. We have heard full and interesting argument on three issues arising; foreseeability, causation and apportionment. We shall deal with each in turn. Foreseeability[34]At the extremes, Mr Jones contends that this head of claim fails the test of foreseeability. He submits that the ratio of the Court of Appeal's majority decision in Essa v Laing [2004] ICR 746 was limited to cases of direct racial abuse in the face of the victim (the particular facts of that case); thus the limited role of foreseeability in such cases to which Pill LJ speaks at paragraphs 39-40 of the report is to be seen in that context. He argues that stress is not, of itself, an injury and this claim fails at the foreseeability hurdle. Mr Laddie, to the contrary, argues that Essa , applying the House of Lords approach in Kuwait Airways v Iraqi Airways (Nos. 4 and 5) [2002] 2 AC 883 , fits the torts committed in the present case. The simple question is, did the wrong cause the damage? Even where there are a number of causes of the damage, here the Claimant's stroke in November 2004, some of which are non-tortious or otherwise not the responsibility of the Respondent, then provided that the relevant tortious act(s) made a material contribution to the damage then the Respondent is liable for the whole of the Claimant's loss, which we have assessed at £50,000.[35]Again, we find ourselves unable to agree with either submission. We accept that in cross-examination by Mr Laddie Dr Sambrook, who had not been asked to deal with the foreseeability issue on paper, agreed that the relevant acts of discipline, particularly the AC decision in January 2003, made a material contribution to the Claimant's stroke in November 2004. Mr Laddie's argument to some extent depends on the old House of Lords case of Bonnington Castings Ltd v Wardlaw [1956] AC 613 ; however in that case the question of apportionment was not argued, see Hatton v Sutherland [2002] ICR 613 , paragraph 38, per Hale L J, giving the judgment of the Court. It is raised as an alternative argument by Mr Jones in the present case.[36]As to Mr Jones's position, we shall adopt the stance taken by the majority in Essa v Laing . In our view, the Claimant here is to be compensated for the loss which arises naturally and directly from the wrong (per Pill L J, paragraph 39); that approach, we think, is consistent with the statutory direction in s 67(5) TULR(C)A; the amount of compensation awarded… shall be such as the EAT considers just equitable in all the circumstances. In any event we accept Mr Laddie's alternative submission that on the facts here some degree of injury, if not its extent, was foreseeably likely to be caused by the tortious acts as found. Causation[37]We can deal with this aspect quite shortly. We accept Mr Laddie's submission that the question is whether the relevant acts of discipline made a material contribution to the stroke in November 2004, see Hatton, paragraph 35. On the basis of Dr Sambrook's evidence, which we accept, the Claimant has proved a material contribution. Mr Jones accepts that fact. Apportionment[38]Whilst the tortious acts made a material contribution to the stroke, there were other material factors for which the Respondent is not responsible. They are:(1) the Claimant's pre-existing atheroma, or irregularity, which caused blood clots ultimately causing an arterial blockage. This was demonstrated by an incident on 3 May 1999, the day after the Claimant had attended her sister's funeral (she having died of cancer) which Dr Sambrook characterised as a transient ischaemic attack (TIA). Her stroke-like symptoms at that time were due to a transient disturbance of the blood supply to the brain. Although the Claimant made a satisfactory recovery from that incident she remained on treatment for blood pressure and Dr Sambrook told us, and we accept, that statistically one in four patients who suffer a TIA can be expected to go on to suffer a full stroke within five years and that on the balance of probabilities would do so within 12 years of the TIA.(2) Dr Sambrook linked stress as a material factor contributing to a stroke. In the Claimant's case he was of the opinion that the stress of attending her sister's funeral predisposed her to the TIA experienced on the following day. Whilst she experienced stress following the index tortious acts she was also stressed by the prospect of the litigation, both before the ET and EAT and before the Certification Officers. We think this is borne out by certain extracts from her GP Notes to which we were taken during Dr Sambrook's evidence. By way of illustration, she attended the surgery on 14 January 2003, reporting anxiety due to problems with her Union since September (2002); on 23 April 2003 she reported stress thinking about industrial tribunal (ET) and on 19 May was recorded as complaining of stress; tribunal next month. The last relevant entry prior to her stroke in November 2004 was on 14 August 2003; stress – full hearing in October. As to this evidence we accept Mr Jones's submission (a) that stress induced by the litigation process does not sound in damages when apportioning responsibility for the loss flowing from the index tortious acts and (b), based on Dr Sambrook's evidence, the longer the gap in time between the index event and the ultimate stroke, the less relevance those events had to her stroke.(3) Her ostracism by former colleagues at the TUC assembly in September 2004, which Mr Massey told us caused her stress because they ganged up on her. We accept that this factor, although materially contributing to her stroke, is not attributable to the tortious acts of the Respondent in respect of which loss is to be assessed. See Bradley , paragraph 33, per Wood P.[39]We note that in HM Prison Service v Salmon [2001] IRLR 425 the EAT (Mr Recorder Underhill QC presiding) upheld an ET award in respect of psychiatric injury caused to the Claimant by sexual harassment for which the Respondent employer was responsible, based on an apportionment of 75% of the injury being attributable to the tort. In our judgment, taking into account all non-tortious contributory factors we assess the contribution of the acts of unjustifiable discipline in the present case, on the whole of the evidence, at 25%. In doing so we have been careful to avoid any overlap, amounting to double recovery, with our award for injury to feelings. It follows that we assess compensation for Personal Injury in this case at £12,500. (25% of the £50,000 for general damages established in Paragraph 32 above). Contribution[40]Section 67(7) TULR(C)A provided:
"Where the EAT… finds that the infringement complained of was to any extent caused or contributed to by the action of the Applicant (Claimant), it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding."
[41]We accept, as counsel agree, that the test for contribution under s 67(7) is the same as that in the case of unfair dismissal compensation, put classically by Brandon L J in Nelson v British Broadcasting Corporation (No. 2) [1980] ICR 110, 121D-122A as culpable or blameworthy conduct, which may be foolish, perverse or "bloody-minded", which caused or contributed to, here, the acts of unjustifiable discipline. The extent to which it is just and equitable to reduce compensation, if at all, in the light of any such finding is a matter of fact and degree for us.[42]We should say straightaway that the strength of the Respondent's contribution argument, as it was initially presented on paper, has been diminished by the concessions made by Mr Sweeney in cross-examination to which we have earlier referred, as Mr Jones realistically recognised. In particular, it is no longer contended that she failed to engage in the disciplinary process leading to the AC decision on 7 January 2003. Mr Sweeney accepted that she had attempted to agree a later date for the hearing but the meeting went ahead on the Union's preferred dates in her absence.[43]However, two principal points are made in support of the contribution argument:(1) The Claimant's failure to warn her colleagues on the NCC/NEC that she intended to put herself forward as an independent candidate at the Pension Trustee election having not criticised the system of preferred candidates adopted in June 2002; and(2) Her criticism in her pen portrait of her colleagues on the NCC standing as preferred candidates on the basis that they would lack independence as Trustees.[44]Mr Laddie initially submitted that the first point was irrelevant, in that it was not the reasons for the unlawful acts of discipline; however, he conceded that it was relevant to the no confidence motion. We accept that it was and that whilst there was nothing to stop the Claimant exercising her democratic right to stand, her failure to give her colleagues any prior warning, given that she was a member of both the NEC and NCC was insensitive to the extent that it can properly be regarded as blameworthy or culpable conduct as explained by Brandon L J. As to the second point, Mr Laddie contended that it was hypocritical for the Union to complain of such criticism in the hurly-burly of a Union election and further, that the pen portrait was not an attack on the preferred candidates. The difficulty with that submission is that in her written representations to the AC the Claimant said in terms:
"Far from union backing being a help to a trustee in discharging his duties, it poses an actual hindrance to their proper performance. This is because he has to keep putting out of his mind his close connections with and sympathy with the union, and take a broader view. Failure to do this would not only be misbehaviour or incompetence, it would also be illegal. A Trustee, by law, has to be independent."
[45]That statement was expressly taken into account in the AC's written adjudication, which was that she should be debarred from office for suggesting in her election address that the preferred candidates (her colleagues on the NCC) were incapable of action in an independent manner as required of Pension Trustees.[46]In these circumstances, particularly to the experienced industrial members of this tribunal, with whom I agree, it seems to us that the Claimant did contribute to the acts of unjustifiable discipline within the meaning of s 67(7).[47]That said, we are equally agreed that the Claimant's contribution to the infringements was far less than that of the Respondent. Our finding is that it is just and equitable to reduce her compensation by 15%. Conclusion[48]It follows that we award the Claimant the total sum of £17,000 compensation for the two acts of unjustifiable discipline by the Respondent Union, made up as to £7,500 for injury to feelings plus £12,500 general damages for Personal Injury, less 15% contribution. There is no Special Damage claim. Any applications for interest and/or costs or other consequential directions must be made in writing within 21 days of the seal date of our order following this judgment.