MRS M ADEY-JONES v MRS A R O’DOWD [2008] UKEAT 0098_08_2205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0098_08_2205Case No Appeal No. UKEAT/0098/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M ADEY-JONESAPPELLANTMRS A R O’DOWDRESPONDENT
Before
His Honour Judge SerotaDate 22 May 2008
[1]APPEARANCES For the Appellant MR G M RIDGEWAY (a non-practising Barrister) Employment Law Advisory Service Charles House Albert Street Eccles Manchester M30 OPW For the Respondent MR M BRADBURY (Representative) Citizens Advice Bureau Myddleton House 115-123 Pentonville Road London N1 9LZ SUMMARY UNFAIR DISMISSAL: Compensation \ Contributory fault Where an employee suffered illness partly as a result of the employer's conduct and partly for other reasons an Employment Tribunal must make careful findings and follow the guidance of cases such as Seafield Holdings Ltd (trading as Seafield Logistics v Drewett [2006] ICR 1413. It should also attempt to determine whether the illness was caused by breach of the implied alleged duty of trust and confidence or by wrongful dismissal; see GAB Robins (UK) Limited v Triggs [2008] EWCA Civ 17 and GMB Trade Union v Brown [2007] UKEAT/0621/06. HIS HONOUR JUDGE SEROTA QC This is a full hearing of an appeal from the Employment Tribunal at Liverpool (Mr K Robinson the Employment Judge being the Chairman) decided on 18 December 2007. The Employment Tribunal accepted the Claimant's complaint that she had been unfairly dismissed and that there had been unlawful deductions from her wages.[2]The Notice of Appeal which in fact challenged both liability and remedy came before Elias J on 15 February 2008. He ordered, and his Order is dated 20 February 2008, that while the appeal in relation to remedies should go to a full hearing insofar as the Notice of Appeal concerned issues as to liability it should be disposed of under Rule 3(7) as disclosing no reasonable grounds for bringing the appeal. Consequently today we are only concerned with remedies.[3]We take the factual background largely from the judgment from the Employment Tribunal.[4]The Respondent (as we shall refer to the Appellant) was the owner of the Old Vicarage Care Home in Winsford in Cheshire. The Claimant was a carer and between 1989 and 20 January 2006 she was employed by the Respondent. In latter years, it would seem, that the Respondent left the entire day-to-day running of the care home to the Claimant, as we shall call her. The Claimant's service record was unblemished.[5]The care home was inspected and presumably licensed by Cheshire County Council's Social Services Department, which we shall refer to as "Cheshire", which funded the placement of service users at the home. The home was also inspected by the Commission for Social Care Inspection, which we shall refer to as "CSCI".[6]It is not altogether clear on the facts as to precisely what happened but one knows that concerns in relation to the Claimant's management of the care home emerged in 2005. She was arrested by the Police on 15 November on suspicion of stealing benefits from vulnerable adults. I say at once that the Claimant has always denied any wrongdoing and she was never charged with this matter. It would appear that the Police investigations continued for some little time, and indeed continued after her dismissal.[7]As a result of the investigations which apparently had been by Cheshire and CSCI which had been going on for approximately 12 months and under apparent pressure from Cheshire the Respondent suspended the Claimant some time in November 2005. It emerged that the Police involvement had been initiated by Cheshire and CSCI. As a result of their investigations a critical report of the Claimant was sent to the Respondent and this was the first the Respondent knew of any allegations of misconduct against the Claimant.[8]The Respondent instructed her advisors, ELAS, that is the Employment Law Advisory Service, to deal with the disciplinary process. The disciplinary process led to various allegations being considered as disciplinary matters but ELAS did not consider the matters which were the subject of the Police investigation nor did they concern all the matters raised by Cheshire or CSCI. However, 16 specific matters set out in a letter of 16 January which in part had been culled from a letter from Cheshire were the subject of the disciplinary investigation.[9]The Claimant was dismissed after the disciplinary proceedings and an unsuccessful appeal. Her termination date was 20 January 2006. Thereafter the Claimant was unemployed from 20 January 2006 to the end of April 2006 when she took up a temporary post with employment consultants, Citation, at a lower wage. She then fell ill. She was on sick pay for a further nine months until the end of January 2007 followed by a period on Jobseekers Allowance. She eventually decided to follow a different career path. The Employment Tribunal decision[10]The Employment Tribunal was critical of the conduct of the disciplinary proceedings at the appeal; I am not concerned with those. However, it is right to say that the Employment Tribunal considered that the disciplinary proceedings were seriously mismanaged. They found that there was a modest amount of holiday pay and unpaid wages due.[11]It is to be noted that during the course of the disciplinary proceedings no attempt appears to have been made to ascertain whether the matters reported by Cheshire had any foundation in fact. No witnesses appear to have been interviewed. No evidence appears to have been gathered other than the letter from Cheshire, the relevant parts of which were put to the Claimant.[12]The Employment Tribunal found that there was no contributory fault as the evidence of the Claimant showed on the balance of probability she did little or nothing wrong. We should note that the Claimant maintained that she had done absolutely nothing wrong and gave a full answer to the various allegations made against her.[13]The Employment Tribunal then went on to say this, having noted that she had been unemployed for 14 weeks, and that she then took the job with Citation for six weeks:
"56. After those six weeks she then became ill because of what was happening in her life, not only with the dismissal but also with the police investigation which was apparently connected with her time at the home. In any event she was paid £100 per week less at Citation than she had been at the respondents. She was then on sick pay for 9 months to the end of January 2007. She then went on to Job Seekers Allowance and ultimately decided on a different career path by setting up her own business and working in the kitchens of the Conservative Club near to her own home. 57. We find that the sickness of the claimant was as a direct result of the way she had been treated by the respondent. Furthermore she received no support from Mrs Adey-Jones throughout this unhappy period. Mrs Adey-Jones abdicated all responsibility for any problems at the home."
[14]The Employment Tribunal then dealt with the submission that her loss of earnings should have ceased when she got her job with Citation and they say that was not appropriate, it was a temporary job, she was paid £100 per week less than she had previously; and thirdly, the job only lasted a short time because she became ill because of what was happening in her life which included the dismissal and the on-going Police investigation.[15]The Employment Tribunal then went on to say that they accept that Mrs O'Dowd made some efforts to mitigate her loss, and that it would be appropriate to end the compensatory award at the end of February 2007 because by that time she would have been able to find other work.[16]So far as the Notice of Appeal is concerned the first ground relates to the issue of contributory fault. Essentially it is submitted that there was no material to know what the findings were or what evidence was given. We have difficulty with that submission, and indeed during the course of his submissions it was accepted by Mr Ridgeway that it was "slightly thin" and it was really something put in to support the appeal against liability. It seems to us that the Employment Tribunal simply had no evidence upon which any contributory fault could be based. It is correct to say that there were allegations made, by the Police which did not pursue them, by CSCI and by Cheshire. However, there was no evidence of the truth of any of those allegations and the Employment Tribunal heard the Claimant who vigorously disputed any wrongdoing and they found her evidence to be correct. This Ground of Appeal cannot therefore succeed and it is dismissed.[17]The second ground of appeal is one which is more persuasive and relates to the finding by the Employment Tribunal that the Claimant's illness, because it was at least in part caused by the Respondent, meant that for the period when she was unable to work through sickness she was entitled to compensation.[18]It is submitted that the manner in which this was dealt with by the Employment Tribunal is inadequate. It seems to us that there is very little explanation as to why the Employment Tribunal came to the conclusion that it did.[19]The Employment Tribunal does not even tell us what the Claimant's illness was. We understand from Mr Ridgeway and Mr Bradbury, who appears on behalf of the Claimant, agrees, that it was some form of depression. We do not believe any medical evidence was given. It must be borne in mind that the depression manifested itself some 20 weeks after the dismissal (and one must also bear in mind that there was a Police investigation and serious allegations being pursued by Cheshire and CSCI); the Employment Tribunal needed to give careful consideration to all these matters in determining whether it could be said that it was sufficiently caused by the actions of the Respondent as would justify a finding that the Respondent was responsible for the illness and consequently for the loss of earnings.[20]The matter does not rest there. We have not had the benefit of seeing the full Employment Tribunal Originating Application (ET1). We have drawn the attention of Mr Ridgeway and Mr Bradbury to a passage from Harvey on Industrial Relations, paragraphs 2544.01 and 02 and also to a decision of the Court of Appeal in the case of GAB Robins (UK) Limited v Triggs [2008] EWCA Civ 17 .[21]It is to be noted firstly that a claim that an employee has contracted an illness as a result of the actions of his or her employer can lead to the recovery of compensation in an unfair dismissal claim providing it has been caused by an unfair dismissal. Whereas this may be the case here, because it is by no means clear on the findings of the Employment Tribunal, it will have been caused by a failure on the part of the employer prior to dismissal to give adequate support to a Claimant. That would not be recoverable otherwise than by a claim for breach of contract. We simply do not know if a breach of contract claim was raised.[22]We draw attention to the decisions of Seafield Holdings Ltd (trading as Seafield Logistics) v Drewett [2006] ICR 1413 which is of relevance to the issue as to what happens where there are concurrent causes for cessation of work through illness. It would appear to be the authority for the proposition that future losses should not be determined on an all or nothing causation approach but by assessing the percentage likelihood that the underlying condition might have prevented the Claimant from working in any event.[23]It is a percentage approach and it may be that that is the appropriate approach to be taken in a case such as this, in which case the Employment Tribunal would have to determine what proportion of the illness was the result of the Respondent's conduct and that of Cheshire, the CSCI and the Police.[24]Matters do not end there. As was made clear in the case of Eastwood v Magnox Electric [2005] 1 AC 503 , Johnson v Unisys Limited [2003] 1 AC 518 , GAB Robins (UK) Limited v Triggs [2008] EWCA 17 and GMB Trade Union v Brown [2007] UKEAT/0621/06 other matters need to be considered. In particular the question of whether the claim could properly be brought as an unfair dismissal claim or whether it was necessary for there to be a breach of contract claim. As we have noted, it is not apparent to us immediately whether there was a breach of contract claim or whether the Employment Tribunal considered that the illness was the result of a breach of contract rather than the actual dismissal.[25]It follows, therefore, that this matter as both Mr Ridgeway and Mr Bradbury accept, should be remitted to the Employment Tribunal. Mr Ridgeway initially asked that the matter should be remitted to the same Employment Tribunal, something which Mr Bradbury would accept. However, in the course of his submissions Mr Ridgeway submitted that the matter should be remitted for rehearing before a different Tribunal.[26]It seems to us (and we have regard to the decision in Sinclair Roche & Temperley & Anor v Heard [2004] IRLR 763 ) that this is a matter which could conveniently (and should conveniently in the interests of the parties) be remitted to the same Employment Tribunal to reconsider the issue of remedies on the basis of the authorities to which we have drawn attention.[27]We direct that a transcript of this judgment should be prepared for the benefit of the Employment Tribunal.[28]We are extremely grateful to Mr Ridgeway and Mr Bradbury for their helpful Skeleton Arguments and their oral submissions which were succinct and to the point.