Ur- Rehman v Doncaster Jahia Mosque (Unfair Dismissal : Compensation) [2012] UKEAT 0117_12_1008

EAT
Ur- Rehman v Doncaster Jahia Mosque (Unfair Dismissal : Compensation)
[2012] UKEAT 0117_12_1008 · 2012-08-10
[1]The Claimant was an imam who worked at the Doncaster Mosque from 2006 until the 16 April 2009. It had been assumed that he was not an employee, and accordingly when his services were dispensed with by the mosque as falling short of those which they wanted there was no grievance procedure, no procedures which dealt with capability, and no reason advanced for his dismissal which would satisfy section 98 (4) as there would have been if he had, indeed, been an employee. However, when he complained to the Tribunal at Sheffield, it held on a preliminary hearing that despite this he was indeed an employee.[2]Proceedings continued. It was accepted, for the purpose of those proceedings, that the dismissal was necessarily unfair. There followed a hearing limited to findings relevant to quantum. The decision at that hearing, reasons for which were given on 17 May 2011, gives rise to this appeal.[3]At a preliminary hearing of the Appeal on 22 February 2012 two grounds were thought worthy of consideration at a full hearing. They were whether the Tribunal was in error of law in the way in which it had dealt with a claim for “stigma” damages and whether the way in which it had dealt with a claim for holiday pay betrayed a material misapprehension of the evidence which had been put before it.[4]Those two grounds must be seen in the context of the decision as a whole. The Tribunal Decision[5]The Tribunal determined that the mosque needed an imam who was fluent in English to deal with the requirements of those who were members of the mosque, who in Doncaster contained a number of members originating from different countries with different dialects whose one common tongue, even if it was a second language, was English. The Doncaster Mosque decided to employ an English speaking imam in consequence. The Claimant was not fluent in English. The mosque thought there was no possibility that the Claimant would improve his skills to be able to act as an English speaking imam within any reasonable timescale. The Tribunal accepted that, and accordingly addressed the question arising under Polkey . It concluded that it was inevitable that within 26 weeks of his actual dismissal the Claimant would have been fairly dismissed by reason of capability relating to his inability to speak English – that is by 9 October 2009. By Paragraph 80 of its decision, the Tribunal limited his compensatory award to the 26 week period between the actual, unfair, dismissal, and the hypothetical, fair, dismissal that would have occurred.[6]It heard evidence that after the dismissal the Claimant had had a short employment with the Madni Trust for seventeen weeks (June 2009 to October 2009), which terminated after the notional 26 week period would have ended, and was then employed by the Abu Haneefa Educational Trust “(AHET)” from December 2009 to 6 August 2010. The employment with AHET was thus entirely outside the 26 week period.[7]Mr Wheeler, representing the Claimant, argued that the Tribunal should make an award of stigma damages arising out of the circumstances of the Claimant being dismissed by AHET.[8]It is common ground that the Tribunal had evidence before it about the circumstances of that dismissal. The Claimant himself gave evidence in chief that his employment with AHET came to an end because:
“the Respondent improperly and unreasonable (sic) interfered with and soured my relationship with my new employer by telling lies about the reason for my dismissal by the Respondent and by seeking to put pressure on them to get me to withdraw from these proceedings and when I refused they dismissed me.”
He called Zafar Iqbal, who was at the material time a trustee of AHET, in support of this. In three paragraphs of his witness statement (4, 7, and 8) he described how one Ateeq Ahmad of the Doncaster Mosque had spoken to a trustee of AHET (so it was reported) making allegations against the Claimant, to the effect that he had taken the mosque to the Employment Tribunal and was certain “to repeat that trick here in Slough” with AHET. Zafar Iqbal described consequent discussion amongst the trustees, a meeting at which almost everyone was convinced by the Claimant’s explanations, and then further discussions amongst the trustees, which resulted in a decision which in summary was:
“… to either dismiss the Claimant from his position with the Trust or require him to withdraw his case from the Tribunal against Doncaster Mosque.”
Ateeq gave evidence, though his witness statement does not deal with the circumstances of the Claimant’s departure from AHET. Letters of 8 August 2010 from the police to the Claimant, and from Hanif Khan, a trustee of AHET of 13 August 2010 were also before the Tribunal, as was an email from Mr Wheeler of 18 August reporting that he had spoken to Mr Aqeel Lone who had confirmed that the Claimant was dismissed for gross misconduct effective on 6 August 2010, adding:
“interestingly, he told me that the gross misconduct involved a failure to recognise/sit down with the board of trustees, similar to the problem in Doncaster!”
Further material relating the circumstances of the departure from Slough to a refusal to withdraw the claim against the Doncaster Mosque (which, it should be noted, had by then already reached a determination that the Claimant was an employee with the necessary consequence that he would succeed in a claim for some compensation) was produced.[9]The Tribunal was concerned generally that there was a lack of reliable evidence. It thought some of the evidence of the Claimant was inconsistent (paragraph 62); that he was very sketchy about what his pastoral duties as imam included (paragraph 63); that the evidence did not enable the Tribunal to quantify the number of hours that he worked precisely (65); and that on many issues “… the actual evidence before us was thin and we have had to make assessments of the balance of probabilities upon a paucity of information” (67). This problem surfaced again in the Tribunal’s consideration of the case in respect of stigma damages (as it did, too, in respect of the holiday pay point to which we will turn later).[10]The Tribunal dealt with the “stigma” claim, and the evidence with all the problems which we have summarised, in four short paragraphs (81-84):
“Mr Wheeler asks us to make an award of stigma damages to Mr Rehman. On consideration, we find that he has brought insufficient evidence to show such loss on the balance of probabilities. 82. We heard evidence from Mr Iqbal regarding the circumstances of Mr Rehman’s dismissal from the Abu Haneefa Educational Trust. Given our findings of fact and our application of the principle in the case of Polkey , none of what Mr Iqbal said about the circumstances of Mr Rehman’s dismissal from the Abu Haneefa Educational Trust is relevant. 83. We would say, however, that given the evidence heard from him and Mr Ateeq Ahmad regarding a conversation that Mr Ahmad had with a committee member of the Abu Haneefa Trust, we would not have found that there was a causal link between the actions of Mr Ahmad and the dismissal of Mr Rehman by the Abu Haneefa Trust. This finding is relevant to the issue of stigma loss. 84. Applying the facts to the law there is little to add to the facts as set out above. We find as a matter of fact that Mr Rehman would have been dismissed within 6 months of his actual date of termination for a reason connected to his capability.”
[11]When it came to non-payment of holiday pay, the Tribunal said this:
“88. We were surprised and disappointed by the paucity of the evidence in chief of Mr Rehman on the holiday pay point. At the outset, it appeared that his position was that he had never been paid holiday pay throughout his employment. In answer to a question from the Employment Judge Mr Rehman said that he did take the occasional day off. It therefore appears to this Tribunal that Mr Rehman did take time off and there is no suggestion that he didn’t receive his £175 per week and £75 per week rent…” [they were, together, his remuneration] “..at all material times. It is therefore clear to this Tribunal that Mr Rehman is unable to quantify his claim for non-payment of holiday pay and therefore, for uncertainty, this claim must fail.”
Submissions[12]Mr Wheeler argued that the Tribunal’s conclusion that it had insufficient evidence was linked to its rejection as irrelevant of the evidence of Mr Iqbal, and in relation to the dismissal of the Claimant from Slough. Further he argued that it was not appropriate to apply a test of balance of probabilities to the establishment of loss, where authorities such as Allied Maples Group Ltd v Simmons and Simmons [1995] 1WLR 1602 demonstrated that the proper approach was not to ask if a loss was more probable than not, but to ask what the chances of such a loss would be. He relied upon a passage in the Judgment of Stuart-Smith LJ:
“In many cases the plaintiff’s loss depends on the hypothetical action of a third party, either in addition to action to the plaintiff, as in this case, or independently of it. In such a case does the plaintiff have to prove on the balance of probability as Mr Jackson submits, that the third party would have acted so as to confer the benefit or avoid the risk to the plaintiff, or can the plaintiff succeed provided he shows that he had a substantial chance rather than a speculative one, the valuation of the substantial chance being a question of quantification of damages? Although there is not a great deal of authority, and none in the Court of Appeal, relating to solicitors failing to give advice which is directly in point, I have no doubt that Mr Jackson’s submission is wrong and the second alternative is correct.”
Later in his judgment he made reference to the speech of Lord Reid in Davies v Taylor [1974] AC 207 at 213A:
“… you can prove that a past event happened but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 percent: sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51% and a probability of 49%.”
Millett LJ was to the same effect, holding that if there was a real and substantial chance it would have to be evaluated.[13]The Allied Maples approach had been applied in the context of stigma damages by Lightman J in BCCI v Ali [1999] EWHC 846 , at Paragraph 67 of which he said:
“ Allied clearly lays down that in the case of applications for jobs to be made in the future after the date of the trial, the court must adopt the ‘loss of the chance’ approach and decide whether stigma will deprive the employees of a real chance of success on future applications for employment. More difficulty exists as to what approach is required in the case of past adverse decisions by prospective employers. The 2 alternatives are (1) to consider the hypothetical situation of each of such applications having proceeded in the absence of stigma, and decide whether such applications had a real prospect of success and (if so) whether stigma deprived the applications of that prospect of success; or (2) to examine the historical facts in respect of those applications and determine whether stigma was in fact a cause of the adverse decision.”
[14]He concluded (paragraph 76) that in the case of a past application in which a prospective employer had refused to consider the matter on the merits because of stigma the correct approach was to decide whether stigma thereby caused the employee to lose a real or measurable chance of his application being successful. However, in the case of all past applications which were considered on their merits and were not excluded by reason of stigma, the correct approach was to decide whether stigma was an effective (sole or concurrent) cause of the application not succeeding. Lightman J added in respect of the claim before him which related to the dismissal of one Zafar by his employer:
“ … if before or instead of any decision of the merits of his dismissal his claim to continue in employment was rejected out of hand because of stigma, the loss of the chance approach would be appropriate; but if the decision was on the merits (albeit stigma was one of those merits) Mr Zafar must establish that stigma was a cause of the decision to dismiss.”
[15]He argued that stigma damages were available in principle not merely where the employer had leant itself to dishonest and disreputable conduct (as explained in BCCI v Malik [1997] ICR 606 ) but also where a claimant was at disadvantage because he had brought and maintained Employment Tribunal proceedings against a former employer, by reason of the fact of his making that claim.[16]In Abbey National plc v Chagger [2009] EWCA Civ 1202 , [2010] ICR 397 , it was held that in principle an employer who had discriminatorily dismissed an employee could be liable for the stigma that might attach to the employee if future employers decided not to employ him because of his taking proceedings against the employer. The mere fact that the decision not to employ was that of a third party and not of the tortfeasor would not in itself free the original employer from liability. Elias LJ said at Paragraph 90:
“We recognise ... that Malik concerned a different kind of stigma than arises here, but it shows that the mere fact that third party employers are the immediate cause of the loss does not free the original wrong-doer from liability. The fact that the direct cause is their decision not to recruit does not of itself break the chain of causation. Nor can the action of the employee in taking proceedings conceivably be treated as such an act. It is a necessary step in order to maintain a remedy for the employer’s wrong; it would be absurd if it were to distance the employer from the effects of that wrong. The crucial question in our judgment, is whether the position is altered by the fact that the actions of the third party employers are unlawful. Legally, the question is whether these unlawful actions break the chain of causation, or whether they cause the loss flowing from them to be too remote. The answer to that question is inevitably influenced by considerations of policy. … 94. In our judgment the stigma loss is in principle recoverable. It is one of the difficulties facing an employee on the labour market.”
[17]It is a matter of regret that we were not referred during argument to the fact that the decision of Lightman J was considered by the Court of Appeal ( [2002] ICR 1258 ), and did not discover till after argument had concluded that it had held that though Lightman J was to be upheld as to the conclusion to which he came, he had not been under an obligation to apply the loss of chance principle articulated in Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 , and had erred in adopting an over elaborate approach to the legal issue. In every case it was necessary to ask whether, in relation to finding re-employment, stigma from the former employee's previous employment had(a) a real or substantial effect, and(b) if it did, how great an effect. In answering that question, it was appropriate to have regard to the entire history of the former employee's search for new employment, including the number of jobs applied for, how well targeted and presented the applications had been, the number of interviews obtained, how they had gone and any reasons given for rejection. While each application was relevant, it was necessary to answer the question on the basis of the job search in its entirety. It was not necessary as a matter of law for the former employees to call evidence from prospective employers in relation to the effect of BCCI "stigma" on the particular applications that had been made to them.[18]H e argued that what had been said at the r3(10) hearing (Mr

Justice Langstaff, then sitting alone and not as part of this Tribunal) held good:

“There was material before the tribunal…concerning the subsequent employer of Mr Rehman, a mosque in the south of England. He, Mr Rehman, had lost his post not because he could not speak English nor because he had been dismissed, but because he had taken unfair dismissal proceedings against the Doncaster Mosque. The argument here is that if there is a disadvantage on the labour market caused because of the dismissal, it is well recognised (see BCCI v Ali & Ors . [2001] UKHL 8 ) that damages may be payable. Such stigma is capable of outlasting the direct financial effects in terms of weekly wage because of its very nature. It is arguable therefore that the 26 week period adopted by the Tribunal might not apply to stigma damage as well and might not fairly represent the losses that the Claimant suffered in consequence of the dismissal.”
[19]Mr Segovia, for the Respondent, did not dispute the general principle that stigma damages might be awarded in a proper case. Nor did he dispute that the fact that a job applicant had brought proceedings against a former employer (albeit successfully) might give rise to such damages in a proper case. He contended however that the decision here rested upon fact. The Claimant could point to no case in which he had actually failed to gain appointment to post because of stigma – he had, to the contrary, succeeded in obtaining employment for 17 weeks, from June 2009, with only a short gap between leaving employment with the Respondent (on 16 April) and starting with the Madni Trust. There was no complaint about the termination of that employment. He had then, again after only a relatively short delay, began work with AHET. There was evidence he had been recruited to that post because of his reputation: that was the opposite of stigma. He had worked for a good part of a year before his dismissal. There was no evidence that he had been denied any other work because of taking proceedings against the Doncaster mosque. Yet, complained Mr Segovia forensically, Mr Wheeler had emphasised how the evidence was to the effect that it was well known throughout the Muslim communities of the UK that the Claimant had brought proceedings – yet, despite it, he had not appeared to suffer unless it could be said that he parted from AHET for that reason. Since on the facts the Tribunal had rejected that, there was no fact which supported a claim for stigma damage sufficient to justify an award. Discussion[20]There must be evidence to support a claim for loss consisting of difficulty in obtaining or keeping employment due to “stigma”, particularly where the stigma consists not of taking unjustified proceedings, but successful ones against a former employer. The evidence likely to be critical is that which can answer the questions identified by the Court of Appeal in appeal from the decision of Lightman J in Ali which we have set out at paragraph 17 above. They require more than a suggestion or suspicion that stigma might be at work – though, as with discrimination, it cannot be expected that would-be employers would happily confess to have turned an applicant away because he had justifiably complained about a breach of his employment rights by another on an earlier occasion. Stigma may have to be inferred, just as was the case with discrimination, a matter recognised in King v Great Britain China Centre [1992] ICR 516 before statute passed the burden of proof to the employer in many cases of alleged discrimination, though this also requires a sound evidential foundation from which the inference may be drawn If, however, (taking the evidence as a whole) there is insufficient to conclude that stigma has been working its insidious worst, then a Tribunal can make no award.[21]It was a lack of sufficient evidence that led this Tribunal to conclude as it did here. The question, then, is whether it was open to the Tribunal to conclude that there was an insufficiency of evidence here; or, put another way, whether on any reasonable view the evidence should have led to a finding of stigma.[22]Without the alleged circumstances of the Claimant’s dismissal from AHET, there was no evidence that the fact of his action against the Doncaster mosque had led to any difficulty on the labour market. What happened at AHET was not to be established by evaluating the chances that it might have happened, but asking if it probably did.[23]We do not have the whole of that evidence before us. The Claimant, and Zafar Iqbal, gave evidence for the Claimant; Ateeq Ahmad for the Respondent.[24]The Claimant’s evidence was criticised in other respects and in general by the Tribunal – see paragraph 9 above. He did however say in chief (para. 15 of his witness statement of 15 December 2010) that the Respondent had pressurised AHET to get him to withdraw from the proceedings, and that “when I refused they dismissed me”. No precise details of the conversation in which this occurred, or of its background, are given.[25]Zafar Iqbal described how after 8 months work, without apparent complaint, he was told by one Mohammad Arshad that Ateeq had spoken to him, Arshad, mentioning that the Claimant had taken Doncaster to the Tribunal and was certain “to repeat the trick here”. He said that discussions followed: it is plain that trustees took different sides, before that side which wished to dispense with the services of the Claimant succeeded. His evidence relies upon the accuracy of the report by Arshad of that which Ateeq had said.[26]Ateeq was called, and was open therefore to cross-examination. He plainly gave his side of the telephone conversation in evidence. Having heard it, and the evidence of Mr Iqbal, the Tribunal concluded (in a phrase which almost invites further elucidation) “..we would not have found that there was a causal link between the actions of [Ateeq] and the dismissal of Mr Rehman by the Abu Haneefa Trust”.[27]It should be noted that also before the Tribunal was the correspondence between AHET, the Claimant, and the Thames Valley Police to which we refer at paragraph 8 above.[28]We are in no position to know precisely what the Tribunal made of this – it did not say in its judgment beyond the cryptic comment to which we have referred. But more importantly we do not know precisely what evidence it heard from Ateeq and from Zafar Iqbal. We did not have the notes of evidence on this from the Tribunal.[29]Accordingly, unless the Tribunal failed sufficiently to express itself upon a real issue in the case, we cannot say it made an error of law. We are in no position to second guess the finding to which the Tribunal came. It heard and saw the witnesses. It heard the questioning. It concluded that whatever Ateeq said, it did not cause the dismissal of the Claimant by AHET. This conclusion could not, on the limited material before us be said to be perverse. It was based on evidence.[30]The question whether the Tribunal indeed expressed itself sufficiently in paragraph 83 to satisfy the requirements of justice is more difficult. It is axiomatic that it is an error of law for a Tribunal not to say why one party has lost and the other won, sufficiently so that that finding might be understood. This is a basic requirement of justice; it informs any appellate court whether there has been an error of law in the reasoning; and it acts as a useful aide memoire to the decision-makers in the Tribunal, so that logical errors are avoided.[31]The appeal has not been put to us upon the basis that there was here a failure to give sufficient reasons. Nor do we think that the reasons, though cryptic, are insufficient in the context. First, the central point at issue was whether or not there was a stigma affecting employability, caused by the fact that the Claimant had taken proceedings against the Doncaster Mosque. The manner in which he came to part from AHET was part, but only part, of the overall picture which would inform that conclusion. The other aspects to it were that the Claimant had plainly had little difficulty in obtaining employment within the 6 months to which the Tribunal thought it appropriate to limit his future loss of earnings (though they did not commit the legal error of assuming that the stigma damages would cease then too), and none of the evidential questions raised by the Court of Appeal in BCCI v Ali was answered in a way which would suggest stigma. The finding is clear enough: the Tribunal did not accept that the Claimant lost his job at AHET because of events at Doncaster. The cryptic comment “this finding is relevant to the issue of stigma loss” contained in the last sentence of paragraph 83 shows that the Tribunal was aware that if it had found that there was a link, that would have constituted some evidence which would support stigma damage. There being (in its view) no such link, the finding at paragraph 81 is easily to be understood. The Claimant simply failed to prove that he had suffered from the stigma he alleged. Though we, for our part, would have wished greater detail and clarity in paragraph 83, we are conscious that throughout the judgment, as we have noted already, the Tribunal bemoaned the lack of clear evidence placed before it. We have therefore come to the conclusion that the Tribunal’s findings of fact are made sufficiently clear in context. That leaves no room in the facts as found for the allegation of stigma loss to succeed. The claim in this respect must be dismissed. Holiday Pay[32]At paragraph 88, the Tribunal explained its reasons for declining to make any award of outstanding holiday pay to the Claimant. The amount of holiday which the Claimant might be entitled to was unquantified and, given the evidence, so uncertain that his claim could not be sustained. In reaching that conclusion, the Tribunal noted that the Claimant had said that he had taken the occasional day off. This was said by the Claimant to be a misapprehension of the evidence. There was a claim identified in a schedule of loss prepared by Mr Wheeler in advance of the hearing, which identified clearly what holiday pay was claimed. If, therefore, the Claimant had had no holiday (as he claimed) he would fall to be paid those sums. The uncertainty relates to the extent to which the Claimant did take holidays.[33]Mr Wheeler’s notes of the evidence, went like this. Questions were asked by the Tribunal Judge. Mr Wheeler noted them: the Employment Judge might have found difficulty in doing so himself since he was asking the questions. They went as follows:
“Q Did you work 7 days a week? A Yes Q Did you take any days off? A Whenever I asked for days off I was told I cannot. If I had a hospital appointment. If I had to take my child to the hospital I was very careful to return before prayer times. I wasn’t able to take holidays. Normal holidays I never did that. Q Did you take any single days? A One time Q Did you go back to Pakistan? A No”
[34]The Judge’s notes of evidence and the recollection of the lay members (since the Judge was questioning during this exchange) was sought. His notes of the same exchange read:
“Q 7 days a week? A Yes Q Days off A When I requested Friday off, I couldn’t on occasion I missed prayers to take child to hospital I didn’t take Sat/Sun off I never took holiday I took a single day off.”
[35]The Employment Judge records that there was a discussion with the parties before he decided to press on. The discussion was around the seeming reluctance of the Claimant to give a straight or consistent answer – he gave the panel the impression of being a poor witness with no grasp of the factual nexus of his case. The Judge commented that Mr Wheeler did not invite the Claimant to verify the schedule of loss or to set out the dates of any holidays taken or not taken. The evidence before the Tribunal was therefore contradictory – an admission that the Claimant took days off to take his son to hospital, followed by a statement he never took holidays, followed immediately by one saying he had done so (on one occasion) and evidence from the Respondent that the Claimant had taken more holiday. Mr Segovia, for the Respondent, has reminded us that a Mr Javed Patel made a statement which was agreed between the parties save for his estimate of 50 – 70 hours of the average working week of an Imam. It dealt with holidays. It said in relation to holidays that when both he and the Claimant were Imams together in Doncaster they would cover for each other as needed. This suggested that the Claimant had indeed had holiday.[36]The Tribunal judge reports that the Tribunal came to the conclusion that the Claimant had taken days off for which he had been paid, since he was paid the same amount every week. They did not accept the allegation in his schedule of loss, and Mr Wheeler’s submission that no holiday had been taken. Accordingly, they found that the Claimant had been unable to quantify his claim and it should fail. Ms Sharma, panel member, recorded the difference of position between the Claimant and Respondent as to holiday which was taken. Mr Senior had not retained notes, but recollected that the evidence given by the Claimant on his holiday lacked clarity and he did not answer the questions with any certainty. He noted:
“The questions that were posed by Employment Judge Shore were in my recollection, not answered with the clarity that Mr Wheeler has them recorded and I would say that Paragraph 88 of the written Reasons is a more accurate account.”
[37]These contributions from the Judge and the members show clearly that the Tribunal was not under a misapprehension as to the evidence which had been given. That ground of appeal must therefore fail. There was a proper basis for the conclusion at paragraph 88 that the Claimant had not proved his case as to holiday pay. Conclusions[38]A lack of clarity may often affect evidence. A Tribunal will normally do the best it can to make findings of fact. If however, the evidence is too uncertain, or the Tribunal simply not in a position to resolve conflicts, there may on occasion be no alternative but for the Tribunal to rely upon the burden of proof. Where it does so there is no error in law in it stating that the evidence has been too uncertain for it to reach a proper conclusion, or that there is insufficient to prove a case. The Tribunal here did just that. We are satisfied that there is no error of law, and the appeal must therefore be dismissed.