Local Government Yorkshire And Humber v Shah (Victimisation Discrimination : Whistleblowing) [2012] UKEAT 0587_11_1906

EAT
Local Government Yorkshire And Humber v Shah (Victimisation Discrimination : Whistleblowing)
[2012] UKEAT 0587_11_1906 · 2012-06-19
[51]“ 51. The Appellant's contention is inconsistent with the general principle of contract law that if a party refuses to perform a contract, giving a reason which is wrong or inadequate, or giving no reason at all, or terminates a contract under a contractual provision to that effect, the refusal or termination may nevertheless be justified if there were at the time facts in existence which would have provided a good reason for the refusal: Chitty on Contracts 29th ed., paragraph 24-014. That principle is often used in relation to facts unknown to the party refusing at the time of its refusal, but there is no reason why it should not be used in relation to facts which were known to that party at that time. Waiver can apply to qualify that principle, but only in cases of, in effect, estoppel. ”40. In the light of this authority, it is clear that if a Claimant is entitled to treat a contract as having been repudiated and has neither waived the breach nor agreed to a continuation of the contract in any event, the fact that the grounds given for a subsequent determination are mistaken, does not prevent the Claimant from relying upon the earlier repudiatory conduct, provided, of course, that it had not been waived and provided there had been no estoppel. In the light of this, the Respondent did not pursue ground 1 of its Notice of Appeal.41. The second ground of appeal related to the remedy hearing. The Respondent challenged the finding of the Employment Tribunal that the Claimant’s secondment would have ended on 31 March 2011. The Respondent drew attention to the fact that the Bradford and Airedale PCT had told the Claimant at the time that her post had been back‑filled when she went on secondment, and that there was a recruitment freeze and there were no suitable jobs for her, so that redundancy was likely in any event. The Employment Tribunal fixed the chance of redundancy at two‑thirds and the chance of some form of continued employment at one‑third. It is said the Employment Tribunal was wrong because there was no evidential basis for the finding. Further, the secondment was for a fixed term, so there was no basis for finding that the secondment might have continued after the expiration of funding on 31 March 2011. The Employment Tribunal should have had greater regard to the redundancy, and the redundancy from the post at the PCT was to be regarded as a novus actus interveniens that broke the causative chain for any loss after 31 March. Any continuing loss should be calculated solely by reference to the unexpired period of the fixed‑term contract; that is, until 1 April 2011. Mr Lewis, during the course of submissions, asked counsel why the Employment Tribunal was not entitled to make the finding, and the response was there was simply no evidence to support it. Further, our attention was drawn to the fact that the Claimant initially was prepared to work for the Respondent, but this appears to have been only for a few days until she learned what Mrs Arshad‑Mather was supposed to have said.42. There was an argument on the third ground of appeal that the Employment Tribunal was wrong to ignore the possibility of the Claimant having earnings having chosen to work for Monster Fun without pay. This was not pursued during the course of submissions by Mr Gorasia.43. So far as the fourth ground of appeal is concerned, the submission of Mr Gorasia was that the Claimant was not entitled to rely upon an uplift under section 207A of TULR(C)A because this did not apply outside the case of employees. The Claimant was not an employee; she was a worker, and the terms of section 207A did not permit a claim for an uplift by her.44. The fifth ground of appeal related to the £25,000 awarded by the Employment Tribunal for injury to feelings. Mr Gorasia submitted that the sum of £25,000 was excessive; the Claimant was only entitled to compensation in the middle band as set out in the Vento case as brought up to date in the Da’Bell case. The award of £25,000 was perversely excessive, and it was a matter of law rather than a question of fact as to which of the two bands the award should have been. He submitted that the purpose of the award in this case was not to compensate the Claimant but to punish the Respondent. He drew attention to a number of authorities culled from Harvey ; these are conveniently and helpfully set out in his skeleton argument at paragraph 32. He suggested that the appropriate bracket for the injury to feelings was between £10,000 and £15,000.45. So far as the Claimant’s case is concerned, we will only deal briefly with the submissions in relation to those grounds of appeal that were pursued. In relation to the question of whether the Claimant would have achieved longer employment beyond the date for termination of her secondment agreement, it was submitted that the award should be just and equitable. The Employment Tribunal, it was submitted, is not bound by common-law principles of foreseeability and of remoteness, and our attention was drawn to the case of Leonard v Strathclyde Buses [1998] IRLR 693. Future loss has to be decided by reference to how long it was likely that the employee obtained further employment, and our attention was drawn to the case of Courtaulds Northern Spinning Ltd v Moosa [1984] IRLR 43. Further, our attention was drawn to the authorities on how future loss based on a loss of chance should be calculated. Our attention was drawn to the Judgment of Mummery LJ in Vento , and the Court of Appeal in that case asked the question: “[…] what were the chances, if Ms Vento had not been discriminated against and dismissed, of her remaining in the police force until the age of retirement at 55? […] The question requires a forecast to be made about the course of future events. It has to be answered on the basis of the best assessment that can be made on the relevant material available to the court. That includes statistical material, such as that produced to the tribunal showing the percentage of women who have in the past continued to serve in the police force until the age of retirement.” 46. The Employment Tribunal was not required to be satisfied that the future event would occur or was probable; the Claimant only has to show that by reason of the defendant’s default he or she had lost all reasonable chance of employment, which would have to be evaluated. We will return to the law later, but we mention that so the Claimant’s submissions can be understood. 47. The Employment Tribunal found that the Claimant had at all times acted reasonably; see the decision of the Employment Tribunal, paragraphs 12‑13 and 16‑18. Our attention was also drawn to the importance of the fact that the Employment Tribunal had received the oral evidence, and our attention was drawn to RSPB v Croucher [1984] ICR 604, referred to in paragraph 15 of the skeleton argument of the Claimant, and the well‑known passage in the Judgment of Waite J at page 609 to the effect that: “We have to remind ourselves also of the important principle that decisions are not to be scrutinised closely word by word, line by line, and that for clarity’s and brevity’s sake Industrial Tribunals are not to be expected to set out every factor and every piece of evidence that has weighed with them before reaching their decision. So it is for us to recall that what is out of sight in the language of a decision is not to be presumed necessarily to have been out of mind. It is our duty to assume in an Industrial Tribunal’s favour that all the relevant evidence and all the relevant factors were in their minds, whether express reference to that appears in their final decision or not; and that has been well established by the decisions of the Court of Appeal in the Retarded Children’s Aid Society v Day [1978] IRLR 128.” 48. Our attention was also drawn to the well‑known authority of Scope v Thornett [2006] EWCA Civ 1600 as to the approach of the Employment Tribunals to determining the loss of a chance. The Claimant finally submitted that redundancy did not break the chain of causation, because if she had not been dismissed, she would have remained in post and have had further experience and qualifications that would have enhanced her prospects of finding a new post with the PCT. The law 49. We have already drawn attention to paragraph 51 of the Judgment in Reinwood , but as the first ground of appeal has now been withdrawn we do not need to say anything further about that case, but again, in relation to general approach to this appeal, which largely rests on perversity, we refer to the well‑known passage of Mummery LJ in Yeboah v Crofton [2002] IRLR 634 at paragraph 93, in relation to perversity appeals: “Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has grave doubts about the decision of the Employment Tribunal, it must proceed with great care […].” 50. We also refer to the decision in ASLEF v Brady [2006] IRLR 576 , a decision of Elias J, as he then was (paragraph 55):[55]“ Mr Sethi properly reminded us of certain well established general principles derived from the authorities. The EAT must respect the factual findings of the Employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not ‘use a fine toothcomb’ to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law. ” 51. We now turn to deal with the claim in relation to uplift, and in this regard we draw attention to paragraph 207A(1) and (2) of TULR(C)A: “(1) This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2.(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— (a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies, (b) the employer has failed to comply with that Code in relation to that matter, and (c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.” 52. And section 295: “[…] employee means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment […].” 53. So far as future loss is concerned, we have found it very helpful to have regard to the Judgment of Elias J, as he was, in the case of Software 2000 Ltd v Andrews [2007] IRLR 568 :[54]“ 54. The following principles emerge from these cases: (1) In assessing compensation the task of the Tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal. (2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the Tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future.) (3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made. (4) Whether that is the position is a matter of impression and judgment for the Tribunal. But in reaching that decision the Tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence. (5) An appellate court must be wary about interfering with the Tribunal's assessment that the exercise is too speculative. However, it must interfere if the Tribunal has not directed itself properly and has taken too narrow a view of its role. (6) The s.98A(2) and Polkey [ v A E Dayton Services Ltd [1987] IRLR 503 ] exercises run in parallel and will often involve consideration of the same evidence, but they must not be conflated. It follows that even if a Tribunal considers that some of the evidence or potential evidence to be too speculative to form any sensible view as to whether dismissal would have occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it considers it can properly rely and from which it could in principle conclude that the employment may have come to an end when it did, or alternatively would not have continued indefinitely. (7) Having considered the evidence, the Tribunal may determine (a) That if fair procedures had been complied with, the employer has satisfied it – the onus being firmly on the employer – that on the balance of probabilities the dismissal would have occurred when it did in any event. The dismissal is then fair by virtue of s.98A(2). (b) That there was a chance of dismissal but less than 50%, in which case compensation should be reduced accordingly. (c) That employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself, as in the O'Donoghue [ v Redcar & Cleveland Borough Council [2001] IRLR 615 ] case. (d) Employment would have continued indefinitely. However, this last finding should be reached only where the evidence that it might have been terminated earlier is so scant that it can effectively be ignored.” 54. We consider that assistance may be derived from Elias J’s approach in other cases where the court is required, to some extent, to speculate as to future loss, such as cases involving a Polkey reduction. As Buxton LJ observed in Gover and Ors v Propertycare Ltd [2006] EWCA Civ 286 , [2006] 4 All ER 69 , a case that also involved an element of speculation, the fact that an issue was a matter of impression and judgment for the Tribunal:
“[…] indicates very strongly that an appellate court should tread very warily when it is being asked to substitute its own impression and judgement for that of the tribunal.” 55. Elias J at para 44 referred further to the judgment of Buxton LJ “He also observed that the Polkey approach - assessing what would have happened had the dismissal been fair - was wholly consistent with the principle of assessing loss flowing from the dismissal on a just and equitable basis, which is the principle underlying section 123. These should be approached as “a matter for the common sense, practical experience and sense of justice of the Employment Tribunal sitting as an industrial jury” (para 14). He also approved the way in which HH Judge McMullen QC had described the process in the EAT in that case (para 26) where the judge had said that the Employment Tribunal’s task was “to construct, from evidence not speculation, a framework which is a working hypothesis about what would have occurred had the [employer] behaved differently and fairly.” 56. We have also had regard to the guidance in Scope v Thornett [2007] ICR 136 and in Leonard v Strathclyde Buses [1998] IRLR 693, and we quote from the headnote of the latter: “An employment tribunal has to apply the statutory test for assessing a compensatory award as a whole and assess what is just and equitable having regard to the loss so far as attributable to the employer. The extent to which the tribunal can have regard to what followed after dismissal is primarily a matter for it to assess on the particular facts. To introduce principles of foreseeability or remoteness in the technical sense in which those concepts apply in other legal contexts is inconsistent with the discretionary approach which has governed the assessment of unfair dismissal compensation ever since Norton Tool Co (No. 2) v Tewson [1972] IRLR 86 .” 57. We now turn to the authorities on the quantum of compensation for injury to feelings. The leading authority, of course, is Vento , where guidance was given by Mummery LJ. Mummery LJ suggested there should be three bands of compensation. The first band should normally be between £15,000 and £25,000; £25,000 has since been updated by the case of Da’Bell to £30,000. The first band: “65(i) […] should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the grounds of sex or race. […] Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.” 58. The middle band, between £5,000 and £15,000, increased by the Da’Bell case to £18,000, “should be used for serious cases which do not merit an award in the highest band”; and then, finally, there is a band for less serious cases of between £500 and £5,000, increased by Da’Bell to £6,000, “such as cases where the act of discrimination is an isolated or one off occurrence”
. Mummery LJ, however, went on to say this: “There is of course within each band considerable flexibility, allowing tribunals what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.” 59. It is also to be noted: firstly, that these are guidelines, and it may be proper in circumstances to depart from them; and secondly, although the figures were updated by Da’Bell , that decision is now itself two‑and‑a‑half years old, and inflation has continued to march on, so they may need to be revised upwards again. Conclusions 60. So far as resignation is concerned, we need not deal with this matter. We now turn to deal with the issue of continuing employment. We are satisfied the Employment Tribunal directed itself correctly as to the law and in particular to the need for future loss to be tethered to some evidence before the Employment Tribunal. In our opinion, the Employment Tribunal was entitled on the material before it to conclude that there was a one‑third possibility of the Claimant being in employment after April 2011, even if this employment would not be at the Respondent, because the Employment Tribunal accepted that funding would not have continued beyond April 2011. Had the Claimant served out her full term at the Respondent to the end of March 2011, it is likely that she would have achieved greater skills and experience and would have been better able to compete in the job market. Also, her original post had been back‑filled in the expectation that she would not be returning to the PCT until April 2011; there would therefore have been a greater chance of her being offered further employment. 61. We refer to paragraph 18, again, of the decision of the Employment Tribunal on remedy, and it is clear that the Employment Tribunal was relying, as it was entitled to do, on its industrial knowledge and was entitled to conclude that the Claimant’s position would have been enhanced as she would have had significant extra skills and experience. In our opinion, the Employment Tribunal made a sensible prediction on the evidence and was entitled, if not bound, to consider the likelihood of future employment on the available evidence. That was, to some extent, a matter of impression and judgment, but that was for the Employment Tribunal, and its judgment should be respected. The mere fact that an element of speculation was involved was not a reason for refusing to have regard to the evidence. The Employment Tribunal followed the guidance of Elias J in Andrews ; as he observed, “a degree of uncertainty is an inevitable feature in the exercise of determining future loss”. 62. The Employment Tribunal was entitled to have regard, as we have said, to its industrial knowledge of the industrial jury, and, as this was a matter of impression and judgment of the Employment Tribunal, we, the Appeal Tribunal, should tread very warily when we are asked to substitute our own impression and judgment for that of the Employment Tribunal. We see no reason why the continuing loss should have been calculated by reference to the unexpired period of the fixed‑term secondment. The Employment Tribunal was entitled to conclude on the evidence that the loss would have extended beyond this. We have taken account of the fact that for a few days, and no more, the Claimant appears to have been prepared to return to her work for the Respondent, but in the circumstances this does not impact on her loss. We are unable to see how the redundancy at the PCT could in any sense be regarded as a novus actus . 63. We do not deal with the issue of mitigation, as it has not been pursued. So far as the uplift is concerned, we have this to say. Although detriment suffered by whistleblowers in making protected disclosures is regarded as a form of discrimination, employment law does not always follow a logical course, even though in other cases of remedies for discrimination these uplifts are made available to both employees and workers. However, it is clear that so far as concerns section 207A, on the effect of a failure to comply with the ACAS Code, only employees, as opposed to workers, can take advantage of a remedy offered by section 207A. While we are minded to accept that the Respondent was obliged to comply with the ACAS Code, regarding its finding that the Claimant in her capacity only as a worker was not entitled to claim the uplift provided by section 207A, to that extent the appeal on this ground will be allowed. 64. So far as injury to feelings is concerned, we are satisfied that the decision of the Employment Tribunal is far from perverse and the Employment Tribunal was entitled to find that it was within the upper bracket of Vento . We reject the suggestion that the purpose of the award in this case was not to compensate the Claimant but to punish the Respondent; this is quite inconsistent with the explicit approach of the Employment Tribunal at paragraph 30 of the remedy decision. We have not found very much assistance from the reports referred to in Harvey to which our attention was drawn by Mr Gorasia. The Employment Tribunal was entitled to have regard to the most significant distress to the Claimant that her concerns were ignored by the Respondent; these went to the core of her professional experience, and in this regard we again draw attention to what the Employment Tribunal had to say in its remedy Judgment at paragraphs 11 and 13: that the Claimant had been so affected she was unable to contemplate applying for another role with another employer: “The Tribunal accepted the Claimant was entirely genuine in that feeling and it is a measure of the degree of distress and impact on her of the Respondent’s actions. In some senses, this was a perfect storm of a Respondent failing to investigate and take seriously the Claimant’s concerns and beliefs about a lack of financial probity, against a background of a Claimant whose career to that date had been engaged in promoting exactly that: the appropriate commissioning and spending of public money.” 65. We also draw attention to what the Employment Tribunal had said at paragraph 14, and in particular the Claimant’s evidence that she was suffering ongoing symptoms of mental distress, some of which was the result of her treatment by the Respondent. The Employment Tribunal correctly directed itself that detrimental action taken against whistleblowers should always be regarded as a very serious breach of discrimination legislation (see paragraph 6.4). 66. Finally, we would say this: the appeal will be allowed solely in relation to the question of the 25 per cent uplift, and the order of the Employment Tribunal will be varied accordingly. We would again commend Mr Gorasia for his most helpful skeleton argument; we do not know who prepared the Claimant’s skeleton argument, because she instructed a member of the Bar and we have not been told who it was, but it, again, is of very high quality. The skeleton arguments are succinct yet detailed, and we have found them most helpful.