Konczak v BAE Systems (Operations) Ltd (Sex Discrimination : Other losses) [2014] UKEAT 0277_13_1301
EAT
Konczak v BAE Systems (Operations) Ltd (Sex Discrimination : Other losses)
[2014] UKEAT 0277_13_1301 · 2014-01-13
[36]“ Many stress-related illnesses are likely to have a complex aetiology with several different causes. In principle a wrongdoer should pay only for that proportion of the harm suffered for which he by his wrongdoing is responsible : see e.g. Thompson v Smiths Ship Repairers (North Shields) Ltd [1984] QB 405 [a noise deafness case] ; Holtby v Brigham & Cowan (Hull) Ltd [2000] PIQR Q293 [a personal injury case] ; Rahman v Arearose Ltd [2001] QB 351 [another personal injury case] . Thompson and Holtby concerned respectively deafness and asbestosis developed over a long period of exposure; not only were different employers involved but in Thompson some of the exposure by the same employer was tortious and some was not. Apportionment was possible because the deterioration over particular periods of time could be measured, albeit in a somewhat rough and ready fashion. 36. She then goes on at paragraph 37 to say this:[37]“ It is different if the harm is truly indivisible : a tortfeasor who has made a material contribution is liable for the whole, although he may be able to seek contribution from other joint or concurrent tortfeasors who have also contributed to the injury.” 37. She then says, at paragraph 41:[41]“ Hence if it is established that the constellation of symptoms suffered by the claimant stems from a number of different extrinsic causes then in our view a sensible attempt should be made to apportion liability accordingly. There is no reason to distinguish these conditions from the chronological development of industrial diseases or disabilities. The analogy with the polluted stream is closer than the analogy with the single fire. Nor is there anything in Bonnington Castings v Wardlaw [1956] AC 613 or McGhee v National Coal Board [1973] 1 WLR 1 requiring a different approach.” 38. This is the passage that Dame Janet Smith locks horns with. Whether that is to be read as a rejection by Hale LJ of the proposition that indivisible injuries or states of health cannot be apportioned seems to us to be open to question. It seems possible that at paragraph 41 Hale LJ was simply developing what she had articulated at paragraph 36. Be that as it may, Mr Jones urged that this distinction had simply been ignored by the division of this Tribunal presided over by Keith J in the Thaine case. The case has been followed in Osei-Adjei v RM Education UKEAT/0461/12/JOJ, but that is perhaps distinguishable on its facts. 39. We do not think that it is necessary for the purposes of this appeal to say any more about the Thaine case than that in the ordinary case, and the instant appeal is such a case, it seems to us that any Employment Tribunal must first reach a conclusion in relation to an injury or a state of health that is said to be causing loss and itself to result from the tortious act of the employer, as to whether that injury or state of health is divisible or indivisible. In this case, it seems to us apparent that the Employment Tribunal did not do that. It opted instead for a causation analysis at paragraph 27 of the Judgment, which we think is unsustainable. The fact that something has happened in the workplace can be no more relevant than the fact that something has happened elsewhere. The only relevance of other acts is if they are the legal responsibility of the employer. The Cook Tribunal had found that these 15 acts were not the legal responsibility of the employer and in those circumstances, where they occurred did not, in our judgment, matter. The Sherratt Tribunal confused the concept of vicarious liability with the concept of causation in respect of damage or compensation. Nor did that Tribunal pay any attention at all to the question as to how those factors related to the dismissal and the tortious conduct that the Cook Tribunal found had resulted from the dismissal. 40. There is a controversy as to whether there was any significant medical evidence before the Sherratt Tribunal that enabled it to reach a conclusion as to whether or not the injury was in any sense indivisible. Dr Craig did not appear. He had appeared as a witness at the Cook Tribunal, but he was not present at the Sherratt Tribunal, although his reports were before that Tribunal. In his reports, apparently, he had ascribed a 10% contribution to the 15 factors. It seems implicit from that statement he was accepting that a psychiatric injury could be divisible. Dr Jarman, on the other hand, thought that precise attribution was impossible. Whether that amounts to him saying that a psychiatric injury is not divisible, we do not know. Apparently at one of the Cook hearings, Dr Craig was cross-examined. Mr Gilroy QC contends that he accepted that the contribution could be of the order between 20% and 50%. Mr Jones firmly conveyed to us that statement is hotly disputed and contentious. The controversy is probably a facet of this case having the history that we have already outlined. 41. All these are difficulties, but it does seem to us that the Employment Tribunal has misdirected itself and that in a case such as this a Tribunal should consider whether evidence is available that any particular injury and above all a psychiatric injury is or is not divisible. The Sherratt Tribunal did not do that and, accordingly, on that ground, the appeal will succeed. Ground 2 42. The second ground depends to an extent on an alleged inconsistency between paragraph 89 and paragraphs 91-93. What is really said is that there is no proper explanation in the Judgment as to why the Employment Tribunal came to the conclusion that it was on 24 July 2010 that the Claimant’s position shifted from having been a reasonable one to an unreasonable one. Mr Jones pointed to paragraph 92. He submitted that the key to this was deterioration in the Claimant’s condition. Mr Gossall is recorded at paragraph 92 as having taken a particular point of view in 2007, not long after the dismissal. His evidence, said Mr Jones, shows that then it was not unreasonable for the Claimant to refuse medication. It was not then a pressing problem; she was not then so unwell. 43. This is an attractive argument, but it does not seem to us to answer the conundrum as to why it is that on 24 July 2010 the position became one of a failure to mitigate, whereas before it had been a reasonable stance to take (i.e. that the Claimant did not want to take psychotropic medication). In the end, we have come to the conclusion that, whilst it is clear that the Tribunal adopted an analysis that the Claimant’s state of health was deteriorating, that analysis does not seem to us to explain anything about why it was that before July 2010 her position was a reasonable one and after that it was unreasonable. Mr Jones submitted that the failure of CBT was a pivotal matter. We have some difficulty in understanding why the failure of one form of treatment would make it unreasonable for her to take another form of treatment. There is nothing in the evidence that shows that before July 2010 she was suggesting that she should have CBT, and there is a paucity of factual analysis, although we suspect that the material was there for the Tribunal to reach conclusions. In short, we do not think that the employer can tell why it is has lost on the issue of the failure to mitigate up until 2010 but succeeded thereafter. Although we can understand why the Employment Tribunal thought that a three-year period was a useful period for the purposes of calculation, matters of mitigation should not be decided simply because it is mathematically convenient to adopt a particular date. There needs to be a much more cogent analysis as to why the failure to mitigate took place at that stage. Ground 3 44. Turning to the third ground, this is a submission by Mr Gilroy that the Employment Tribunal have simply adopted the wrong approach to pension loss. It is quite clear from paragraphs 105-113 of the Judgment that the Employment Tribunal realised that it must choose either the substantial or the simplified approach, as recommended by the Guidance. It is submitted by Mr Gilroy that the Employment Tribunal have not properly explained why they have adopted the substantial approach, which they clearly do in paragraph 113 and 114 of the Judgment. Mr Jones submitted that it was all perfectly clear from that part of the Judgment why that conclusion had been arrived at. We agree with his submission. It seems to us that the stable nature of the Claimant’s employment was found as a fact at paragraph 112 of the Judgment. The substantial approach can be adopted where there is stable employment. The Employment Tribunal, having found that there was stable employment, therefore was fully entitled to adopt it. The cross-appeal Dr Jarman 45. We turn then to the cross-appeal. This comprises two matters. We will deal with the second matter, Dr Jarman, first. It is clear from the history of this case that the Claimant has no respect for, and a great deal of suspicion of, Dr Jarman. If an illustration of that were needed, it can be found in the fact that, at the first examination, she tape-recorded what transpired. Although that does not nowadays raise the same disquiet that it would have raised some years ago, when such clandestine recordings were regarded very much askance, nevertheless it is an indication of the strong feelings that have been generated. What happened in this case, over a series of hearings, is that a number of ways of suggesting that Dr Jarman was not independent and acted improperly and unprofessionally have been adopted by the Claimant. In this case when Mr Jones started to cross-examine Dr Jarman, Mr Gilroy QC objected. The result is to be seen at paragraph 22 of the Tribunal’s Judgment. The Tribunal would not allow the matter to be pursued. 46. Mr Jones complains that a challenge to the independence of an expert or as to the professional competence or propriety of an expert is a routine matter. We think that somewhat overstates the case. Experience of litigation shows that in most cases where expert witnesses are called there is no such challenge either to independence or propriety. Nevertheless such matters are not unknown. A considerable number of years ago now, this was all identified by Cresswell J in the shipping case The Ikarian Reefer [1993] 2 Lloyd’s Rep 68. For a number of years the legal principle as enunciated by him in relation to expert witnesses appeared in every textbook and monograph on the subject. It is probably the case that it has since been overtaken by passages of the Civil Procedure Rules. It is, however, clear that it is open to challenge an expert, whether on the principles enunciated by Cresswell J in The Ikarian Reefer or under more modern reiterations of the same thing, about their independence and indeed about their competence or propriety.47. Although, as was noted by Mr Haywood during the course of argument before us, something like this issue had been dealt with by the Cook Tribunal, we are quite satisfied by Mr Jones’s submission that those were different aspects, albeit perhaps of the same broad principles, and that the fact that the Cook Tribunal refused to allow certain matters to be pursued could not bind the Sherratt Tribunal when a somewhat different matter was raised by Mr Gilroy QC.48. We accept Mr Jones’s submission that the Employment Tribunal did err by not allowing this matter to be ventilated. We can entirely understand why they took the position that they did. They were faced with what proved to be a long hearing. It was the latest iteration of a series of hearings, and we can imagine that the Employment Tribunal felt that this was going to be cul-de-sac that was not going to be particularly helpful to them. Whilst that is all perfectly understandable, it rather begs the question or jumps the gun and we take the view that, notwithstanding the fact that it would undoubtedly have added to the length of the hearing, it was a matter that should have been allowed to be pursued. It was not, however, on our reading of the Employment Tribunal Judgment anything that resulted in any disadvantage whatsoever to the Claimant. We can see no aspect of the Judgment that results in any finding based upon Dr Jarman’s evidence that could possibly have been altered by the pursuit of these allegations. Indeed, whilst we do not discount the possibility that somewhere lurking in some part of the Judgment is something that owes its origin to a part of Dr Jarman’s report or some part of his evidence, we are bound to say that we have not found it. In those circumstances, although there was clearly an error of law, we see no point in any aspect of that matter being remitted to the Tribunal. Calculation Errors49. Finally, a number of errors have been pointed out by Mr Jones in terms of the calculation. It is very unfortunate that a letter written on behalf of the Claimant dealing with these errors and pointing them out to the Employment Tribunal, has not been dealt with. We cannot understand why that should be so. These are essentially, with the exception of interest, which rests on legal principle, mathematical matters. We deal with them in turn.50. Firstly, it is asserted that there has been too large a deduction on account of incapacity benefit in the period 24 July 2007 to 31 March 2007. This is because the Employment Tribunal has included an amount relating to the period from 6 April 2007 to 23 July 2007 as a deduction against the figures for the later period. This is because the whole of one year’s incapacity benefit in the sum of £4,189.63 has been taken into account. Mr Jones points to the Claimant’s schedule and to the letter sent to the Tribunal and asserts that the correct figure was £2981.08. This means that the losses should have been £92,386.26 and not £91,177.71 under this head. This all seems mathematically correct to us. However, because we are going to remit the matter to the Employment Tribunal, we content ourselves with saying that a mathematical error appears to have occurred. The figures seem to us to be correct, but it is the responsibility of the Employment Tribunal to recalculate the figure, checking that the contentions put forward are correct. That will be included in the terms of our remission.51. Secondly, in relation to future loss, from 25 July 2013 to 6 July 2019 the Employment Tribunal has made the elementary mathematical, if not almost typographical error, of subtracting 49 weeks instead of adding it. It is quite clear from the face of the Judgment that the Employment Tribunal intended to add it. It is equally clear from the total that results from the calculation that instead it has been subtracted. The figure amounts, as we understand it, when the sum is added rather than subtracted, to £85,430.56 and not £58,336.62. We take the same approach. It seems to us obvious an error has occurred. The Tribunal must put it right. It must check the figures. We will remit that matter.52. Thirdly, there has been an error, submits Mr Jones, in relation to the calculation of interest. Interest is awarded by the Employment Tribunal as a result of a statutory instrument, The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 . The power to award interest is clearly to be seen in Regulation 2. The rate at which interest should be awarded is set out in Regulation 3. The Tribunal has dealt with this at paragraph 100. It has done so by awarding interest in relation to what in a personal injury action would be called “special damage”, which is in the Tribunal “loss of earnings to the date of the hearing”. Mr Jones submits that using the figure of 0.5% is entirely wrong. It does not comply with Regulation 3 of the 1996 Regulations. Under sub-paragraph 2 the rate of interest is to be the rate of interest for the time being prescribed for the special investment account under rule 27(1) of the Court Funds Rules, although that is subject to paragraph 3(3) namely that where the rate of interest varies during the period for which interest is to be calculated, if it so desires, the Employment Tribunal may “in the interests of simplicity apply such median or average of those rates as seems to it appropriate”. Mr Gilroy submits that this opens to the door to the Employment Tribunal being able to select what rate it thinks is just in the circumstances. 53. The basic and special account interest rate charges since 1 October 1965 provide in tabular form a list of the relevant rates. In this case, they are 6% up until February 2009, 3% between February and June 2009, 1.5% from June to July 2009 and 0.5% from 1 July 2009 to date. This, submits Mr Jones, whether one looks at the prism of subparagraph 2 of Regulation 3 or the prism of subparagraph (3) of Regulation 3, is very likely to produce the same or more or less the same figure mathematically, but it will certainly not be 0.5%. He submits that subparagraph (2) means that one should, over the period, apply the rate of interest that relates to the particular period of loss. Alternatively, and this the Tribunal did not do, it can apply a median or average. The figures may be much the same. Conclusions 54. We do not accept Mr Gilroy’s submission that, as a matter of interpretation, the Employment Tribunal is able to pick whatever figure it likes out of the table. In our judgment, the Employment Tribunal erred by picking 0.5%. The matter of interest must be remitted to the Employment Tribunal for it to decide, in accordance with the terms of Regulation 3 of the 1996 Regulations, what is the appropriate rate of interest. It has the ability to decide whether it will adopt the rate provided by subparagraph (2) or whether it will adopt the rate provided by subparagraph (3). Accordingly, these aspects of the appeal will be allowed, and the matter will be remitted to the Employment Tribunal. 55. The issue arises as to what is to be the constitution of the Employment Tribunal. Mr Gilroy submits that unhappily this case should go back to a differently constituted Employment Tribunal to deal with the issues upon which he has succeeded, namely the first and second grounds of appeal, hearing the matter anew. Mr Jones submits that the matter can be dealt with by a much more limited approach. We bear in mind the guidance that this Tribunal has been given by the division of this Tribunal presided over by the former President, Burton J in Sinclair Roche and Temperley v Heard [2004] IRLR 763 . This is a case where there has been much delay, where there have been many hearings. On the other hand, to remit it to the same Tribunal might be thought to be allowing a second bite at the cherry, as it is colourfully put. 56. On balance, we have come to the conclusion that this is a professional Tribunal, quite able to look at this matter for a second time. We do not think, in the circumstances, it is justified to have a third Tribunal looking at this matter. The terms of the remission are in fact limited. The Employment Tribunal must consider, on the evidence that it has already heard, and on submissions from counsel, whether the psychiatric injury is divisible and, if it is divisible, whether it will make an apportionment. It must also reconsider its Judgment as to the date of mitigation and explain, on the evidence and having heard submissions from counsel, why it has arrived at that conclusion and whether it wishes to stand by that conclusion, having reconsidered the evidence. It must also reconsider the calculations along the lines that we have indicated.