MR Q QU v LANDIS & GYR LIMITED [2019] UKEAT 0016_19_0103

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2019] UKEAT 0016_19_0103Case No Appeal No. UKEAT/0016/19/RN UKEAT/0159/18Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
MR Q QUAPPELLANTLANDIS & GYR LIMITEDRESPONDENT
Before
Mrs Justice SimlerDate 8 March 2019
[1]APPEARANCES For the Appellant MS NABILLA Mallick (Of Counsel) Direct Public Access For the Respondent MR DAN NORTHALL (Of Counsel) Instructed by: Walker Morris LLP Kings Court, 12 King Street, Leeds West Yorkshire LS1 2HL SUMMARY DISABILITY DISCRIMINATION - Compensation The two Notices of Appeal and Cross-Appeal together raised the following issues for determination in this case:(i) Whether the Employment Tribunal erred in law by applying a balance of probabilities rather than a loss of a chance approach to the question of future loss and/or whether there was a perverse finding of fact that vitiates the assessment of future loss;(ii) If so, whether the Employment Tribunal's approach to pension loss, bonus payments and other benefits was in error.(iii) Is the Claimant entitled to argue that there was a separate error by the Employment Tribunal in relation to the calculation of pension loss because it adopted the employer's contribution method and/or that this aspect of the Remedy Judgment is inadequately reasoned; and if so, are these grounds made out?(iv) Whether the Employment Tribunal erred in failing to address or award any compensation for a quantifiable holiday loss of two days per annum.(v) Whether the Employment Tribunal erred in refusing to reconsider its earlier failure to award a Simmons v Castle and inflation uplift to the injury to feelings award.(vi) Whether the Employment Tribunal erred on reconsideration by awarding an ACAS uplift having previously concluded that no such award should be made.[2]On the first two issues, the Employment Appeal Tribunal held detailed findings of fact about the Claimant's position on the job market at the date of the Remedy Hearing and about his performance, ability and career history in the context of the Respondent's employment were permissibly made. Having made those findings, the Employment Tribunal went on to conduct the difficult speculative exercise of assessing as best as it was able on all the evidence available, what is likely to have happened absent the discriminatory dismissal. It did so by reference to(i) the Claimant's likely ongoing career and career prospects at the Respondent had dismissal not occurred; and(ii) the point at which he was likely to obtain equivalent employment. On this basis full loss after giving credit for earnings received from temporary employment and from Cosworth was awarded for the period from dismissal to the Remedy Hearing; and a further period of three years' future loss (on a partial basis) was awarded from the date of the Remedy Hearing. There was no legal error (nor any perversity) in the Employment Tribunal's approach which was consistent with the approach set out in Chagger at paragraphs 57 and 67 above.[3]The Claimant was not entitled to challenge the Employment Tribunal's decision on pension loss having withdrawn that part of the ground of appeal. In any event, the Employment Tribunal made no error in dealing with pension loss as it did. Nor was there any error of law made out in relation to holiday loss or the injury to feelings award.[4]The Employment Tribunal did not err in refusing to reconsider its earlier failure to award a Simmons v Castle and inflation uplift to the injury to feelings award as this ground was not pleaded in the application for reconsideration. Nor was it an error in any event, for the Employment Tribunal not to apply the Presidential Guidance upon reconsideration, as the remedy hearing pre-dated the Presidential Guidance .[5]So far as the ACAS uplift made at the Reconsideration Hearing is concerned, it was open to the Employment Tribunal, in the interests of justice to review its earlier decision, and its discretion was not arguably exercised in a Wednesbury unreasonable or irrational manner. The Tribunal realised that it made an error in concluding that the award for aggravated damages effectively extinguished any potential uplift award it might otherwise have made. That is because it realised that the aggravated damages award reflected the behaviour of one manager only but its liability decision criticised the procedures adopted by other managers responsible for the PIP, grievance and disciplinary process. In those circumstances the Tribunal was amply entitled to conclude that the interests of justice required reconsideration of that decision. Moreover, the Tribunal reached a conclusion that was again amply open to it in deciding to award a 10% uplift overall. There was no wholesale failure of process here; procedures were adopted but failed to comply with provisions of the relevant Codes. There was no error of law in the Tribunal's approach and conclusion and accordingly the Respondent's cross appeal failed and was dismissed. THE HONOURABLE MRS JUSTICE SIMLER DBE "This appeal be set down for a full hearing in relation to Grounds 3, 6, 7 (excluding paragraph 61), 8, 9 (in respect of holiday rights) and 11." There is considerable overlap in the points raised by these grounds and as Soole J observed in granting permission to proceed, the central challenge is to the Employment Tribunal's approach and conclusion as to the appropriate period for future loss of earnings and benefits, including pension, bonus and holiday benefits. Since that Order, there are additional grounds raised in relation to the Reconsideration Decision.(i) Whether the Employment Tribunal erred in law by applying a balance of probabilities rather than a loss of a chance approach to the question of future loss and/or whether there was a perverse finding of fact that vitiates the assessment of future loss;(ii) If so, whether the Employment Tribunal's approach to pension loss, bonus payments and other benefits was in error.(iii) Is the Claimant entitled to argue that there was a separate error by the Employment Tribunal in relation to the calculation of pension loss because it adopted the employer's contribution method and/or that this aspect of the Remedy Judgment is inadequately reasoned; and if so, are these grounds made out?(iv) Whether the Employment Tribunal erred in failing to address or award any compensation for a quantifiable holiday loss of two days per annum.(v) Whether the Employment Tribunal erred in refusing to reconsider its earlier failure to award a Simmons v Castle and inflation uplift to the injury to feelings award.(vi) Whether the Employment Tribunal erred on reconsideration by awarding an ACAS uplift having previously concluded that no such award should be made. Background facts Issue one: the approach to the question of assessing future loss "18. Having regard to our findings of fact, applying the appropriate law, and taking into account the submissions and schedules of the parties, we have reached the following conclusions: - (1) The first point to note is that the Claimant has produced four schedules of loss over time. The first schedule was submitted on 5 May 2015, and claimed loss only to the end of 2015, with no suggestion of career loss nor even loss for an extended period. The second schedule of loss was submitted on 7 September 2015, when the Claimant had not obtained permanent employment. It contained the following statement: - "The Claimant believes it will take two years to obtain work of the same earning capacity as his previous employment, although he is willing to undertake casual work." However, by the time that the Claimant submitted his third schedule of loss, on 6 January 2017 he had of course won part of his case at the liability hearing. He now submitted a claim for a career loss until retirement at the age of 70, in the sum of £866,000. His total claims were in the region of £1.5 million. That schedule was updated in the fourth schedule of 2 February 2017. It seems to us that there has been a certain opportunistic ramping up of the Claimant's claims. (2) We conclude that the Claimant is not entitled to compensation for career loss. This is not one of those rare cases referred to in Wardle . The Claimant now has a similar permanent job to the one that he had at Landis and Gyr, that of senior electronics engineer. His employment may or may not be as secure as it was at Landis and Gyr, but it is difficult to reach any conclusion on this. We do not know enough about the circumstances of the Claimant's current employer, Cosworth. However, we do take into account the Claimant's employment history, which was that he only had two years maximum in any job before he arrived at Landis & Gyr, and had five jobs in six years. We note Mrs Graves' evidence that electronics engineers tend to move on after five years at Landis & Gyr in order to further their careers. This is quite likely to have happened with the Claimant as he would not have been promoted at Landis & Gyr as there was no promotion opportunity for him there. Further, we note that the Claimant himself said that he would be back to full health within three to four years, and therefore could be expected to find commensurate employment with that at Landis & Gyr. We find that the Claimant's evidence as to why he was now only working four days per week unpersuasive, and not definitively linked to any health issues. We really cannot say why that is the position, and we believe that it unlikely to continue that way for long. We believe that, once proceedings are concluded, the Claimant will make a good and quick recovery and the medical evidence suggests that the prognosis is good. There are jobs out there, and the Claimant has not applied for any since getting his job with Cosworth. Although we do not necessarily blame him for this, the fact is that, as he had not tested the water, he cannot say that he cannot find better employment than he has at Cosworth. At one time the Claimant's own assessment was that he would fully mitigate his loss within two years of the effective date of termination. That concession is of evidential value. Doing the best we can, we conclude that the Claimant will be able to fully mitigate his loss in three years' time and should be compensated on that basis. We therefore award him three years loss of net earnings and benefits from the date of remedy hearing, as well of course as the uncontested past financial loss." "69. …… The task is to put the employee in the position he would have been in had there been no discrimination; that is not necessarily the same as asking what would have happened to the particular employment relationship had there been no discrimination. The reason is that the features of the labour market are not necessarily equivalent in the two cases. The fact that there has been a discriminatory dismissal means that the employee is on the labour market at a time and in circumstances which are not of his own choosing. It does not follow therefore that his prospects of obtaining a new job are the same as they would have been had he stayed at Abbey. For a start, it is generally easier to obtain employment from a current job than from the status of being unemployed. Further, it may be that the labour market is more difficult in one case compared with another. For example, jobs may be particularly difficult to obtain at the time of dismissal and yet by the time they become more plentiful, when in the usual course of events Mr Chagger might have been expected to have changed jobs had he remained with Abbey, he will have been out of a job and out of the industry for such a period that potential employers will be reluctant to employ him. In addition, he may have been stigmatised by taking proceedings, and that may have some effect on his chances of obtaining future employment. 70. The result of these factors is that the discriminatory dismissal does not only shorten what would otherwise have been Mr Chagger's period of employment with Abbey; it also alters the subsequent career path that might otherwise have been pursued. 71. It follows that in our judgment the period during which Mr Chagger would have remained in employment with Abbey had there been no discrimination is irrelevant given that this is a case where he would only leave for another job. The employment tribunal concluded that Mr Chagger would not have left Abbey unless and until he was able to move to a post at least as favourable as his Abbey job. In our view that is a wholly realistic assumption; few employees voluntarily leave employment for a worse paid job. We are not sure that Abbey were contending otherwise." "66. ….. We would accept that, in many cases, the starting point in the case of a discriminatory dismissal will be the period for which the employee would have been employed by the discriminating employer. For example, if the employer can show that the dismissal would have occurred in any event after a specific period of time, for example because of redundancies or the closing down of the business, then this will normally set the limit to the compensation payable. If there is a chance as opposed to a certainty of this occurring, that should be assessed and factored into the calculation of future loss as the answer to the first question indicates. In such a case, the employee would have been on the labour market in any event once the employment had ceased, and the usual effect of the discriminatory dismissal would simply have been to put him on the labour market earlier than would otherwise have been the case. 67. Similarly, there may be circumstances – although in practice they will be rare – where the evidence is that the employee would voluntarily have left in the near future in any event, whether or not he had another job to go to. This could occur, for example, if the employee is dismissed shortly before he was due to retire, or if he had already given notice of resignation when the discriminatory dismissal occurred. It would be wrong to award compensation beyond the point when he would have left because there would be no loss with respect to any subsequent period of employment." (i) Unlike Mr Chagger, although the Claimant had difficulty in obtaining suitable alternative employment for a period following his dismissal, in April 2016 he succeeded in obtaining a permanent position as Senior Electronics Engineer albeit with a lower remuneration package. That employment was ongoing at the date of the Remedy Hearing. There was insufficient evidence for the Employment Tribunal to conclude whether it was or was not as secure as his employment with the Respondent. (ii) There is no finding that the Claimant suffered any sort of stigma damage such as was recognised in Chagger . (iii) Further, given the Respondent's genuine performance concerns in his case, the Employment Tribunal expressly found that demotion would have been possible as an alternative to the discriminatory dismissal. (iv) In any event the Claimant's performance was found to be not such as would have meant he would have been promoted by the Respondent. (v) Further, the post of Principal Engineer into which the Claimant might have been promoted, no longer existed at the Respondent. Issue 2: If the Claimant is correct about issue 1, whether the Employment Tribunal's approach to pension loss, bonus payments and other benefits was in error. Issue 3: Is the Claimant entitled to argue that there was a separate error by the Employment Tribunal in relation to the calculation of pension loss because it adopted the employer's contribution method and/or that this aspect of the Remedy Judgment is inadequately reasoned; and if so, are these grounds made out? Issue 4: whether the Employment Tribunal erred in failing to address or award compensation for a quantifiable holiday loss of two days per annum Issue 5: whether the Employment Tribunal erred in refusing to reconsider its earlier failure to award a Simmons v Castle together with an inflation uplift to the injury to feelings award "the well-known Vento bands of compensation for injury to feelings were updated in Da'bell v NSPCC [2010] IRLR 19 . EAT and further updated in Simmons v Castle [2012] EWCA Civ 1039 , CA . The middle band is now between £6600 £19,800." In relation to personal injury the Employment Tribunal identified as the appropriate band, the range of £5500-£17,500, expressly stating that this included the Simmons v Castle 10% uplift. In relation to injury to feelings, the Employment Tribunal referred to the Claimant's evidence about "his seriously hurt feelings caused by the unlawful victimisation by Mr Lee in the PIP process over a quite lengthy period of time of at least 13 months." The Employment Tribunal concluded that there was high-handed treatment of the Claimant and that the conditions for an aggravated damages award were made out. It did not separate out the ordinary injured feelings award and the aggravated damages award but instead made an "all in award that is at the top of the middle Vento band or at the bottom of the top band – namely £21,000." Issue 6: whether the Employment Tribunal erred in its reconsideration by awarding an ACAS Code uplift to the compensatory award of 10% 207A Effect of failure to comply with Code: adjustment of awards (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% ……… (4) In subsections (2) and (3), "relevant Code of Practice" means a Code of Practice issued under this Chapter which relates exclusively or primarily to procedure for the resolution of disputes. "we did not take into account the other managers' actions – who failed to carry out investigations into the Claimant's grievance. We think we got that wrong therefore we are going to vary the decision. … It was not a wholesale breach because there was a process. We award a 10% uplift on overall compensatory award.…". According to the other set of notes, having referred to the aggravated damages for the Terry Lee victimisation, the Employment Tribunal said:
"We did not take into account in that award the other managers who as we found failed to carry out proper investigations into complaints of investigation and Mr Bennett adding new matters We think got wrong and vary decision Is appropriate to award uplift to reflect the breach of code by these managers Not a wholesale breach because there was a process, albeit flawed Concluded that taking into account already award agg damages To award 10% uplift overall compensatory award…"
Whether implicit or explicit, these summary reasons (as summarily recorded by the Respondent's legal team) show that the Employment Tribunal realised that it had not taken into account in the aggravated damages award the behaviours of other managers who failed to conduct proper investigations and the actions of Mr Bennett in particular. Those failings were plainly regarded as ACAS code breaches. The Tribunal concluded, having realised its error that it was in the interests of justice to vary its decision and to reflect the ACAS Code breaches by other managers in an uplift award. It observed that there was not a wholesale breach because there was a process, but concluded that the process was flawed. Having regard to the aggravated damages award that already reflected part of those flaws, it concluded that an award of 10% uplift should be made. "3.14. The claimant appealed against his dismissal. In the appeal notice, so far as updating and maintaining plans was concerned, the claimant said that what Mr Lee had found was not correct. He quoted meeting notes from 24 June where it was stated that he had updated the work plan and sent it out, albeit without the agreement of his managers. However, they were not always available to meet to agree it, as we have found. The second point; the claimant said that it was Mr Lee's subjective view as to whether actions were completed on time. Indeed, there is evidence set out by the claimant in his notice of appeal that in many instances the weekly improvement plans through August and September indicate that the plan items were on target, according to the new plan. It looks to us that if new plans were made and agreed when the claimant was late on the old plans, and the claimant was now on target, but then the respondent would go back to the old plans to say that he had been late on those. We have to question the point in having a performance improvement plan if improvement in performance is ignored by the management. The appeal was heard by Mr Bennett on 24 October 2014. Mr Bennett noted that the claimant was only working on one project at that time, the E450 project. His main role in that project was to deliver the electronics design and testing within the time scales agreed with Mr Radford. In his consideration of the claimant's performance, Mr Bennet (like Mr Lee before him) went back in time to March 2014 and looked at the earlier, pre- July tasks set for the claimant. The claimant was working to an updated plan at the date of dismissal, and we find that this is what should have been under consideration. Further, during the course of the appeal process Mr Bennett made reference to completely new matters – halt test failures and watchdog failures which had not been referred to before. Mr Bennett noted that the claimant was making complaints of discrimination against Mr Lee, but his investigation showed Mr Bennett that there had been a grievance which had been concluded and there had been mediation with Mr Lee. Mr Bennett's view was that the complaints about discrimination and victimisation against Mr Lee had been closed off nine months before the PIP stated. However, he did not consider whether the victimisation and detriment alleged could be ongoing or had restarted. On 29 October Ms Gould wrote to the claimant, saying that the appeal meeting would be reconvened on 13 November. On 8 November, the claimant wrote to Ms Wood saying that he could not attend the hearing and asked for it to be re-arranged or could he write to her without the meeting taking place. Ms Wood then wrote on the 10 November, saying that she could change the meeting date to 19 November. Otherwise, she asked the claimant to confirm if he preferred to be written to about the outcome instead. The claimant responded on 16 November, saying that it would be fine to write to him, and on 19 November Ms Wood confirmed that she would do so. We find there is some confusion as to the status of any reconvened appeal hearing. Was it to discuss Mr Bennett's findings in this investigation? Or was it simply for the purpose of Mr Bennett giving the outcome? The outcome of the appeal was sent to the claimant in writing on 24 November 2014. The decision to dismiss him was upheld. ……… 6.7. There was also no consideration of demotion or assignment, as an alternative to dismissal. So far as the redeployment period was concerned, then the claimant was only given the Northfields site vacancy list and not a vacancy list for anywhere else. In the appeal to Mr Bennett, it seems that two new allegations of late completion of work were added – those related to watchdog and HALT. Mr Bennett, as with the others, completely discounted potential discrimination and victimisation complaints. It is not clear to us why they were not considered relevant. Just because there had been a grievance process and mediation, does not mean that Mr Lee could not act against the claimant through the PIP process on the basis of those earlier complaints of discrimination. Mr Bennett made no independent investigation of the matter, but acted on what Mr Lee and Mr Radford told him. Also, the claimant was not given the opportunity to discuss Mr Bennett's findings after the first adjourned appeal hearing. Correspondence between Ms Wood and the claimant appears to indicate that the purpose of the reconvened hearing was for the outcome to be delivered to the claimant. Because that was what the claimant thought would happen, he did not attend that hearing. He was therefore not able to challenge Mr Bennett's further investigation. Mr Bennett also failed to consider the issue of redeployment". "The Claimant also pursues an uplift to his award for breaches of the ACAS code in relation to the grievance process. He says that the Respondent failed to arrange a formal meeting to hear his grievances about further victimisation by Mr Lee and the PIP process, or allow him to appeal against any finding that was made, or to stay the capability proceedings pending resolution of his grievances, or at least deal with them concurrently within the process. So far as Mr Bennett's conduct of the appeal is concerned, then we refer to paragraphs 3.14 and 6.7 of our original decision." "This is a case where an ACAS uplift might normally be appropriate in respect of the failure to investigate the claimant's grievances in the PIP process. However, we have already additionally compensated the claimant by way of aggravated damages for the injury to his feelings specifically related to the lack of investigation. To award an ACAS uplift in this respect would be over egging the pudding, and we do not think it is appropriate to do so.…" That of course did not do justice to all the submissions made by the Claimant on this issue, which went wider than simply the actions of Mr Lee, as reflected at paragraph 10 of the Remedy Judgment.

Cited in 1 later judgment