Secretary of State for Justice v Plaistow (Sexual orientation discrimination - victimisation - unfair dismissal - compensation) [2021] UKEAT 0016_20_0607

EAT
Secretary of State for Justice v Plaistow (Sexual orientation discrimination - victimisation - unfair dismissal - compensation)
[2021] UKEAT 0016_20_0607 · 2021-07-06
[58]Moreover, where a tribunal has correctly stated the legal principles to be applied, an appellate tribunal or court should, in my view, be slow to conclude that it has not applied those principles, and should generally do so only where it is clear from the language used that a different principle has been applied to the facts found. Tribunals sometimes make errors, having stated the principles correctly but slipping up in their application, as the case law demonstrates; but if the correct principles were in the tribunal's mind, as demonstrated by their being identified in the express terms of the decision, the tribunal can be expected to have been seeking faithfully to apply them, and to have done so unless the contrary is clear from the language of its decision. This presumption ought to be all the stronger where, as in the present case, the decision is by an experienced specialist tribunal applying very familiar principles whose application forms a significant part of its day to day judicial workload. ” 60. Further guidance as to the approach to be adopted in assessing future loss of earnings was provided by the Court of Appeal in the case of Wardle v Credit Agricole Corporate and Investment Bank [2011] ICR 1290 (see the Judgment of Elias LJ, with whom the other members of the Court agreed). In submissions in the present case, both parties have referred to the summary of that guidance as set out in Harvey on Industrial Relations and Employment Law Division L [881.01], as follows:
“(1) where it is at least possible to conclude that the employee will, in time, find an equivalently remunerated job (which will be so in the vast majority of cases), loss should be assessed only up to the point where the employee would be likely to obtain an equivalent job, rather than on a career-long basis, and awarding damages until the point when the tribunal is sure that the claimant would find an equivalent job is the wrong approach; (2) in the rare cases where a career-long-loss approach is appropriate, an upwards-sliding scale of discounts ought to be applied to sequential future slices of time, to reflect the progressive increase in likelihood of the claimant securing an equivalent job as time went by; (3) applying a discount to reflect the date by which the claimant would have left the respondent's employment anyway in the absence of discrimination was not appropriate in any case in which the claimant would only voluntarily have left his employment for an equivalent or better job; and (4) in career-long-loss cases, some general reduction should be made, on a broad-brush basis (and not involving calculating any specific date by which the claimant would have ceased to be employed) for the vicissitudes of life such as the possibility that the claimant would have been fairly dismissed in any event or might have given up employment for other reasons .” 61. Although Elias LJ in Wardle opined that career-long-loss cases would be “ rare ”, he made clear that was not because “ the exercise is in principle too speculative ”: “50. … If an employee suffers career loss, it is incumbent on the Tribunal to do its best to calculate the loss, albeit that there is a considerable degree of speculation. It cannot lie in the mouth of the employer to contend that because the exercise is speculative, the employee should be left with smaller compensation than the loss he actually suffers. Furthermore, the courts have to carry out similar exercises every day of the week when looking at the consequences of career shattering personal injuries. Nor do I accept a floodgates argument. The job of the courts is to compensate for loss actually suffered; if in fact the court were to conclude that this required an approach which departed from that hitherto adopted, then we would have to be willing to take that step. … 53. Exceptionally, a tribunal will be entitled to take the view on the evidence before it that there is no real prospect of the employee ever obtaining an equivalent job. In such a case, the tribunal necessarily has to assess the loss on the basis that it will continue for the course of the claimant's working life. Chagger is an example of such a case. By the time the tribunal came to assess compensation in his case he had already been out of a job for some years. The evidence was that he had made every effort to obtain employment in his chosen field, having made countless applications for new employment. There was a suggestion that he had been stigmatised in the eyes of other employers as a result of the manner of his dismissal. He had taken reasonable steps to mitigate his loss by going into teaching. In these circumstances the Tribunal was entitled to conclude that he had suffered permanent career damage and should be compensated accordingly. Where such a loss is established, a tribunal has to undertake that task, however difficult and speculative it may be.” 62. In Wardle , the ET had approached the question of future loss of earnings on a career-long-loss basis, but then reduced the overall sum that would otherwise have been due: first, to reflect its finding that there was an 80% chance that Mr Wardle would have left his employment after a further couple of years in any event; second, to reflect its finding that there was a 70% chance that Mr Wardle would have returned to equivalent employment after a further year. Given the latter finding, the Court of Appeal held that the ET had been wrong to approach compensation on a whole career basis but, even had it been entitled to calculate loss over Mr Wardle’s whole career, observed that the ET would then: “56. … have had to assess what the claimant would have been likely to earn over that period had he not been treated unlawfully compared with what he is now likely to earn. The difference would then be subject to reductions to reflect the vicissitudes of life (eg the possibility that he might have been fairly dismissed anyway or the risk that he would die or might have to retire early) …” 63. As Elias LJ concluded, that was not done by merely applying a reduction to reflect the ET’s finding that there was a 70% chance of Mr Wardle’s obtaining equivalent employment within three years: having recognised that Mr Wardle had a 70% chance of obtaining equivalent employment within three years, the ET’s decision ought also to have allowed for the yet greater chance that he would mitigate his losses over the years that would then follow. On that basis, an ET would need to consider applying an upwards-sliding scale of discounts to sequential future slices of time, to reflect the progressive likelihood of securing an equivalent job over the years. 64. The case-law also makes clear that an ET should maintain a due sense of proportion in terms of the overall award made; as the EAT warned in Cannock : “Tribunals [should] … not simply make calculations under different heads, and then add them up. A sense of due proportion involves looking at the individual components of any award and then looking at the total to make sure that the total award seems a sensible and just reflection of the chances which have been assessed.” (per Morison J, p 950) 65. This is a point emphasised by the Respondent in the present case, in particular in relation to the uplift awarded under section 207A TULRCA . Section 207A (relevantly) provides: “(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%.” 66. There was no dispute before the ET that the Acas Code on Disciplinary and Grievance Procedures (2015) (“the Code”) applied in this case and that the Respondent had failed to comply with the Code . Furthermore, the Respondent did not seek to contest that its failure of compliance had been unreasonable or that it would be just and equitable for an uplift to be applied to the ET’s final award. Although not a submission made below, the Respondent now objects that the ET ought not, however, to have proceeded to award a 20% uplift before it had reached any final determination of the actual sum due to the Claimant. 67. On this point, the Court of Appeal’s Judgment in Wardle again provides some assistance, albeit in the context of a different statutory regime. At the relevant time, section 31 of the Employment Act 2002 provided that, save in “ exceptional circumstances ” in which it would be “ unjust or inequitable ” to do so, a failure to comply with a relevant statutory procedure would require the ET to award an uplift of at least 10%, allowing that to be increased by up to 50% if it considered it “ just and equitable in all the circumstances to do so ”
. Noting that the Court of Appeal in Chagger had held that the size of the award could itself be an “ exceptional circumstance ” (allowing that in that case the ET had been entitled to limit the uplift to 2% simply because the compensation (over £2 million) was so large), Elias LJ opined:
“15. … in my judgment it would be illogical if the size of the award were not also a potentially relevant factor when the tribunal is exercising its discretion whether or not to increase the compensation … . The principle of proportionality is equally applicable in those circumstances. The size of the award ought in an appropriate case to be a factor informing the tribunal's determination of what is just and equitable under that provision. No doubt in most cases where the compensation is modest it will not affect the tribunal's analysis. But in other cases it can be a highly material consideration. 16. It follows that I do not accept the claimant's submission that unless the tribunal finds the case to be exceptional, it cannot have any regard to the amount of the award when exercising its discretion … 17. Mr Jeans [leading counsel for the employer] submitted that if the Tribunal ought to have had regard to this factor and did not, then given the size of the award in this case, its decision was inevitably flawed and for this reason alone must be set aside. The EAT accepted that submission and so do I.” 68. Considering whether the ET had been entitled to apply a 50% uplift in Wardle , Elias LJ first reflected on the purpose of the provision and how this might inform the approach to be adopted. In much of the case-law, section 32 had been seen as essentially punitive but Elias LJ considered it might also have a compensatory element: culpability might not be the only relevant factor, the degree of harm caused (for example, by false allegations of fraud or dishonesty that the employee has to challenge in the ET because of the denial of a fair internal process) could also inform the size of the uplift ( Wardle , paragraphs 19-23). In either case, however, the structure of section 32 required an ET to explain what facts or circumstances surrounding the failure made it just and equitable to go above (or below) the 10% starting point. In this regard, Elias LJ considered it would be “ only in the most egregious of cases ” that an increase to the maximum would be justified ( Wardle paragraph 26). 69. Having established the appropriate uplift, Elias LJ stated that the ET would then need to consider “ how much this involves in money terms ”, observing: “27. … this must not be disproportionate, but there is no simple formula for determining when the amount should be so characterised. However, the law sets its face against sums which would not command the respect of the general public, and very large payments for purely procedural wrongdoings are at risk of doing just that. The EAT referred to the case of HM Prison Service v Johnson [1997] ICR 275 when Smith J, as she then was, observed, with respect to the level of compensation for injury to feelings, that it was necessary to have regard to “the view which members of the public would have to the amount of the award.”
In my judgment, that is a fortiori the case where the award is either unrelated, or at least only partially related, to any specific injury to, or loss suffered by, the employee. 28. In considering the sort of sum which would be proportionate and acceptable, it is, in my view, of some relevance to have regard to the sums which the courts are willing to award for injury to feelings and for aggravated damages. The former cases involve compensation for injury but they could bear some comparison with cases where the employee feels aggrieved at losing the opportunity to try to correct what he or she sees as an injustice. Aggravated damages are exceptionally awarded in discrimination cases where there is malice or spite, or the complaints of the employee have been trivialised. That is often more offensive to the employee than a simple failure properly to follow procedures. The level of awards for injury to feelings was laid down by the Court of Appeal in Vento v Chief Constable of West Yorkshire [2003] ICR 318 . The court held that the most serious case should attract an award of compensation no greater than £25,000 (now slightly adjusted to take account of inflation since then: Da'Bell v NSPCC [2010] IRLR 19 . The sum of £65,000 awarded in that case by the Employment Tribunal was held to be seriously out of line. For aggravated damages, the amounts are in fact much lower and rarely exceed £5,000. (That was in fact the sum awarded in Vento in addition to the compensation for injured feelings.) 29. I do not suggest that these are entirely analogous situations, but I think that save in very exceptional cases, most members of the public would view with some concern additional payments following an uplift for purely procedural failings which exceeded the maximum payable for injured feelings. 70. In Acetrip Ltd v Dogra , unreported, EAT (18 March 2019), UKEAT/0238/18, it was common ground that the guidance in Wardle must also apply to the successor regime under section 207A TULRCA (see Acetrip , paragraphs 92-104); specifically, the EAT (HHJ Auerbach, sitting alone) took the view:[102]“ 102. … where the Tribunal is considering making an award of an ACAS adjustment of a certain percentage which, having regard to the size of the underlying award, would be of a significantly large amount in absolute terms, it is an error for the Tribunal not to consider the absolute financial value or impact, before settling on the final adjustment figure. ” observing:[103]“103. There is, inevitably …, a punitive element to an adjustment award under these provisions, because the Tribunal is not simply compensating a claimant for some additional readily identifiable or quantifiable loss that he has suffered. The adjustment is bound, to a degree, to be reflective of what the Tribunal considers to be the seriousness and degree of the failure to comply with the ACAS Code on the employer's part. However, the fact that it has a punitive aspect to it makes it … all the more incumbent on the Tribunal to consider the absolute value of its award, if that absolute value is likely to be significantly large, and bearing in mind that, in fixing on the amount which it considers just and equitable, the Tribunal must have regard to justice and equity to both parties. 71. In Banerjee v Royal Bank of Canada [2021] ICR 359 , whilst no reference to Acetrip is apparent from the report, a different composition of the EAT (Lord Summers sitting alone) came to the same conclusion. Having referred to the guidance provided in Wardle (supra), Lord Summers continued:
“6 … in fixing the ACAS uplift the Tribunal should … hear evidence about quantum before fixing the appropriate percentage. No doubt in some cases it is not necessary to hear evidence on quantum. If the sums involved are modest the Tribunal may not consider that it is necessary to establish the multiplicand since it can foresee that the final figure will be within an acceptable range. But in some cases, detailed evidence of quantum will be critical. 72. In Banerjee , the ET had initially (and at the invitation of the parties) applied a percentage increase without making any reference to the monetary consequences. It had subsequently reconsidered that decision of its own motion, a course that the EAT considered had been open to the ET, allowing it the opportunity to correct its earlier error in this regard. The Remedy Appeal - Discussion and Conclusions 73. In deciding the appropriate award of compensation, the ET had first to determine whether this was a whole-career-loss case. In most cases it will be inappropriate for an ET to embark upon the exercise of assessing loss over a career lifetime because it will generally be possible to determine the likelihood of the employee obtaining equivalent employment within a shorter time period. If that can be done, an award of compensation up to the time when the employee is likely to obtain that equivalent employment will fairly assess the loss that is likely to be suffered. 74. In the present case, the ET found that “ it is very unlikely that the claimant will be able to return to work at any stage between now and his retirement age ” (ET Remedy Judgment, paragraph 34). It was on that basis that it concluded (adopting the language used in Wardle v Credit Agricole Corporate and Investment Bank [2011] ICR 1290 ) that this was one of those rare cases where it would be appropriate to consider the Claimant’s future losses on a career-long basis. That the ET had in mind the guidance laid down in cases such as Wardle , Vento v Chief Constable of West Yorkshire Police (No. 2) [2003] ICR 318 , and Ministry of Defence v Cannock [1994] ICR 918, is clear; not only from the language used, but also because it expressly carried out its assessment on the basis of what was likely , rather than on the balance of probabilities. Contrary to the suggestion made in the Respondent’s submissions under the first ground of appeal, this is not a case where it can properly be questioned whether the ET had the correct legal principles in mind when it approached its task. 75. In reaching its decision on this point, the ET was faced with a dispute between the parties’ experts, not as to the diagnosis (on which they were agreed) but as to the prognosis. As Mr Tolley QC acknowledged in his oral submissions, the ET had been entitled to resolve this dispute - as it did - in favour of the expert evidence adduced by the Claimant. Given the ET’s finding on this point, therefore, the Claimant was to be treated as someone who would suffer from moderate PTSD, depression and symptoms of paranoia for the rest of his working life and who would present with various functional impairments as a result, including finding it difficult to leave his house on some days, or to attend to his personal care, or interact with members of the public, as well as experiencing low mood and sleep disturbance. It was on that basis that the ET had to determine whether there was any likelihood of the Claimant obtaining equivalent employment at some point prior to his expected retirement age. 76. As the Respondent points out, neither expert entirely ruled out the possibility of the Claimant re-entering the labour market at some stage. For Dr Sahota, however, that was because he took the view that the Claimant’s condition might improve at some future point; he otherwise declined to opine on questions relating to the Claimant’s potential employability as this was outside his area of expertise. Other than ruling out a return to the prison service, Dr Oyebode also deferred to the expertise of an occupational health assessor. Whilst he offered some opinion as to the Claimant’s possible employability in his oral evidence (“ [employers] don’t employ someone going off every other week ”), he was plainly doing no more than making an obvious observation as to the Claimant’s vulnerability on the labour market; he was not purporting to provide expert occupational health assessment evidence. Although the ET did not, therefore, have the benefit of expert evidence on the question it had to determine (the likelihood of the Claimant’s being able to obtain equivalent employment given the permanency (as the ET had found) of his mental health difficulties), that was not fatal to its ability to carry out the necessary assessment. Indeed, even if it had had the benefit of an occupational health report, the ET would not have been obliged to accept that evidence; the assessment required would always have been a matter for the ET. Moreover, as Mr Tolley QC also acknowledged in oral argument, in carrying out that assessment, this specialist tribunal was entitled to have regard to its own experience of the labour market; as such, it could be taken to be aware both of the legal obligations imposed on putative future employers under the Equality Act 2010 and of the reality of the Claimant’s still being “ very substantially disadvantaged in the labour market … after what would be a very lengthy absence from work with significant mental health issues ” (ET Remedy Judgment, paragraph 29). 77. Given the ET’s permissible acceptance of Dr Oyebode’s evidence as to the permanency of the Claimant’s mental health impairments, it cannot be said that its conclusion - having correctly applied the test of likelihood, rather than that of the balance of probabilities - was perverse. This was “ a rare case ” (per Wardle , paragraph 50) where it was appropriate for the ET to assess compensation over a career lifetime. 78. That, however, is not the end of the challenge posed by the first two grounds of appeal. Even if it is allowed that the ET was entitled to treat this as a career-loss case, the Respondent contends that it then erred in its approach to the assessment of compensation on that basis; in particular, in failing to apply an appropriate discount to take account of the necessarily speculative exercise in which it was engaged. The Respondent’s argument in this regard is essentially put on two bases. First, as was recognised in Wardle (albeit, obiter ), even in a career-loss case, if an ET has found that there is some likelihood of the employee obtaining other work at some stage, that should be recognised by a sliding scale of discounts applied to sequential future slices of time, to reflect the progressive increase in likelihood of that employee securing an equivalent job. Second, the ET was required to reduce any award for future loss of earnings to reflect the vicissitudes of life, which was not done by merely using the 95% average retention figure within the prison service (for those with over five years service). 79. In Wardle , the ET had made a finding that there was a 70% likelihood that the Claimant would obtain an equivalent job within three years. If considering this as a career-loss case, the ET would need to reduce the compensatory award to reflect this finding but that was not achieved by merely applying a 70% reduction after three years: as both the EAT and the Court of Appeal observed, if Mr Wardle had a 70% chance of obtaining equivalent employment after three years, that likelihood must be all the greater over the years that would then follow. It was on that basis that Elias LJ agreed that a more nuanced approach would be required, applying a sliding scale of discounts to sequential future slices of time, to reflect the progressive increase in likelihood of Mr Wardle’s mitigating his loss as the years went on. 80. The scenario thus envisaged in Wardle is not, however, replicated in this case: in this instance, the ET made no finding that the Claimant would be likely to obtain equivalent employment over any period of time. There may, of course, be cases where an ET has found that the employee has suffered a whole career loss and is unlikely to ever obtain equivalent employment, but where it is, nonetheless, appropriate to apply a sliding scale of discounts reflecting a progressive increase in likelihood that they will ultimately be able to obtain some very different employment, quite possibly at a very reduced level of earnings. Had the ET in the present case failed to consider this, I can see that there might be something in the Respondent’s criticism. It is, however, plain that the ET did not omit to countenance this possibility. Rather, it considered whether the Claimant might be able to return to “ any work in the future ” but found that was “ extremely remote ” and would require him to undergo lengthy “ retraining and/or rehabilitation ”, and that he would then still be “ very substantially disadvantaged in the labour market ” (ET Remedy Judgment, paragraph 29). Having reached that view, the ET was entitled to see this as a case where the evidence did not support the application of a sliding scale of discounts, because “ based on the evidence we have heard, it is very unlikely that the claimant will be able to return to work at any stage between now and his retirement age ” (ET Remedy Judgment, paragraph 34). On that basis, the ET concluded that the “ remote prospect of recovery and a return to work ” (Remedy Judgment, paragraph 35) could appropriately be reflected in the overall discount to be applied in this case. That was a permissible conclusion on the evidence and given the ET’s findings in this case. The Respondent’s challenge in this respect is, in reality, an attempt to persuade me to substitute what might be my own assessment for that of the ET; that does not give rise to a proper basis of appeal. 81. The final argument raised in this regard relates, however, to the 5% discount that the ET did apply in this case, which the ET used to take account of both the “ very slight prospect of the claimant retiring from the Service before his pension age ” as well as the “ equally remote prospect ” of his returning to work (ET Remedy Judgment, paragraph 35). 82. As I have already explained, given its findings in this case, I see nothing wrong with the ET’s approach to the discount to be applied for any future possible return to employment. Equally, I am clear that the ET was entitled to find that the prospect of the Claimant voluntarily leaving his work as a prison officer was “ highly unlikely ”
. That was a finding supported by the evidence not only as to retention figures within the prison service generally but, more particularly, by everything the ET heard about the Claimant himself. 83. What the ET’s reasoning does not reveal, however, is a more general consideration of the uncertainties involved in its predicted loss of earnings in the Claimant’s case. There is nothing to suggest that the ET allowed for the more general vicissitudes of life: the possibility, that all of us must accept, of a working life cut short by reason of early death, disability or other unforeseen circumstance. Indeed, the ET’s reasoning fails even to allow for any uncertainty as to the Claimant’s continued commitment to long working hours. Although a point discussed in relation to the third and fourth grounds of appeal, the assumption that the Claimant would continue to work broadly the same levels of overtime (and thus receive payment plus) would allow for no likelihood that an employee (working in a promoted grade) might not always seek to work such long hours as they had done at an earlier stage in their career. 84. In my judgement, the ET’s error in applying only a 5% discount does not arise in relation to those matters to which it did have regard (the likelihood of the Claimant choosing to leave his employment early or the possibility of his being able to return to some form of employment in the future), but in its failure to take account of the more general uncertainties of life that might impact upon either the length of a person’s working life or even just the length of their working day. On this limited basis, therefore, I therefore allow the Respondent’s appeal on the first and second grounds. 85. I can take the third and fourth grounds of appeal more shortly. First, it is clear that the ET did not make its finding on base salary on the basis of any alleged wrongful denial of payment plus; as the ET stated: “ that was not pursued as a separate head of loss in these proceedings ” and that was plainly not an argument that it was prepared to entertain (ET Remedy Judgment, paragraph 11). 86. As for the ET’s rejection of the Respondent’s argument, that it should use the year 2015/2016 as the basis for calculating the Claimant’s base salary, that was because it found that adopting such an approach would not properly reflect the Claimant’s loss. As the Claimant had been largely unable to earn payment plus for that year, because of injury or his suspension, that was plainly a finding the ET was entitled to make. 87. In then attempting to find a fairer means of representing the Claimant’s actual loss, the ET chose to take the average for the two years contended for by the parties. Another ET might have chosen to take an average figure from a longer period or for different years. It cannot be said, however, that the method chosen by this ET was either wrong in principle or perverse. As for the ET’s decision to take the figures from the Shared Services letter (recording the Claimant’s total non-taxable pay for the relevant years) for both years, this was again a permissible option; the ET was entitled to take a robust approach to this evidence and was not bound to look behind the figures provided to the Claimant by Shared Services. Save that the ET ought not to have included payment plus in the figures used for pension loss (as to which there is no dispute between the parties and which can be corrected in the calculation of final sums that is still to be undertaken), no error of law arises and the appeal on grounds three and four is duly dismissed. 88. The fifth ground of appeal relates to the ET’s finding that a 20% uplift should be applied pursuant to section 207A TULRCA . The point raised is one that has been the subject of consideration by different compositions of the EAT in Acetrip Ltd v Dogra , unreported, EAT (18 March 2019), UKEAT/0238/18 and Banerjee v Royal Bank of Canada [2021] ICR 359 , albeit neither of those decisions would have been available to the parties in this case at the time of the remedy hearing (Judgment in Banerjee was only handed down on 30 October 2020 and I understand that the transcript in Acetrip was not available until sometime after the Remedy Judgment was promulgated in the present proceedings). In both those cases, the EAT held that, at least in cases involving larger sums, it would be an error of law for an ET to award a percentage uplift without first having an understanding of the actual amount involved. In Banerjee , Lord Summers spoke of the need for the ET to “ hear evidence about quantum before fixing the appropriate percentage ” ( Banerjee , paragraph 6). In Acetrip , HHJ Auerbach held that it would be an error for the ET “ not to consider the absolute financial value or impact ” before determining the uplift to be applied ( Acetrip , paragraph 102). 89. In the present case, the ET plainly had evidence before it that would have given a clear indication of the likely level of award in issue; I do not think it lost sight of the fact that the 20% uplift would be applied to an award that was likely to be over £2 million. What is not apparent, however, is whether the ET then had regard to the totality of the award it would be making once the 20% uplift was applied. Whilst it was careful to consider the overall total of the sums awarded under other headings (for example, in relation to the awards for aggravated and exemplary damages), there is no indication that the ET undertook this assessment when determining the percentage uplift for the purposes of section 207A TULRCA . 90. Although there may be a compensatory element to the uplift (by analogy with the statutory regime under consideration in Wardle , a failure to use the procedures under the Acas Code of Practice may deprive the employee of the opportunity to persuade the employer that dismissal would be inappropriate or unfair), inevitably there is a punitive quality to such an award. The statute might not provide that the uplift is to be expressed in a precise amount but it does require that the ET considers that it is “ just and equitable ” to increase any award by that amount. It would be neither just nor equitable if, having regard to the actual sums involved, the final figure awarded by way of uplift was entirely disproportionate in terms of both the employee’s loss and the employer’s breach. 91. In many cases, the figures involved will no doubt be straightforward and relatively modest; the sum to be awarded by way of any percentage uplift will be readily apparent and it will be obvious that the ET will have had this in mind when making such an award. Where larger sums are involved, however, a more structured approach will be necessary and should allow for a final check, having regard to the principle of totality, so as to ensure the ET can be satisfied that the final sum is proportionate and that it is just and equitable that the award should be increased by the amount of the uplift. The ET should, therefore, first work out the amount of the award to which the uplift is to be applied. Having done so, it should determine what level of uplift might be appropriate, given the ET’s assessment of the employer’s culpability and of any harm done to the employee. Having thus reached a preliminary view as to the relevant starting point, the ET should then consider what that would actually mean in monetary terms. At this stage, the ET will need to consider both the totality of the award it would be making, if the proposed uplift was applied, and the proportionality of the uplift itself. At that stage, it may need to adjust the percentage to be applied in the light of the actual sums involved. 92. In the present case, I cannot be confident that the ET undertook the assessment thus required, and I therefore uphold this ground of appeal. 93. In oral argument, the Respondent has sought to go further and to argue that any percentage uplift greater than around 2% would be wrong in this case. That is effectively an argument that the award made was perverse; a point of challenge not raised under the fifth ground of appeal. In the circumstances, I do not consider it appropriate for me to express any view as to the appropriate level of the uplift; that must be a matter for the ET to determine, having correctly undertaken the stepped approach required. The Costs Appeal and the Respondent’s Submissions 94. The appeal against the ET’s Costs Judgment was permitted to proceed on a single ground, as to whether the ET’s order of 12 June 2019, awarding the Claimant a third of his costs of the proceedings, expressly excluding matters covered by the previous costs order of 18 May 2018, offended against the principle of res judicata . It is the Respondent’s case that the ET incorrectly awarded further costs to the Claimant in circumstances where, in an earlier ruling, it had already awarded costs based on the same or similar matters. 95. The Respondent’s submissions in support of this appeal can be summarised as follows: (1) The principles of res judicata (as analysed by Lord Sumption JSC in Virgin Atlantic Airways v Zodiac Seats UK Ltd [2013] UKSC 46 ), and their application to proceedings before the ET, were not in dispute. As for the application of res judicata to costs, any costs regime in a court or tribunal should also seek finality in litigation and to avoid double jeopardy (see (by analogy) Ultraframe (UK) Ltd and ors v Fielding and ors [2006] EWCA Civ 1660 , [2007] 2 All ER 983 , at paragraph 34, and Carroll v Kynaston [2011] QB 959 , CA at paragraphs 30-31). (2) In the present case, the application that had led to the ET’s first ruling on costs had been put by the Claimant on a wide-ranging consideration of the disclosure process in the proceedings to that date (16 May 2018). When then making the first award of costs, the ET had adjudicated upon the Claimant’s allegations of unreasonable conduct and determined that, whilst these did not mean that the Respondent’s response should be struck out, it was appropriate to make an award of costs against the Respondent. (3) The ET then had to decide what costs had been incurred as a result of the Respondent’s unreasonable conduct; doing so, it determined that four days had been lost. (4) Whilst it was then open to the Claimant to make a subsequent application for costs, he could only do so to the extent that he was relying on a different subject matter as the basis for that application; the Respondent could not face double jeopardy for the same conduct. (5) To the extent that the later application for costs related to the Respondent’s unreasonable conduct, the ET had already determined that, up to 18 May 2018, the Claimant could be compensated by the award of four days of costs. It was not open to the ET to re-open that assessment at a later stage. 96. Allowing that the ET might have taken a different approach to the application for costs made at the end of the proceedings had it considered these matters properly, the Respondent nevertheless submitted that the proper outcome would be to uphold the award of one-third costs but limited to the period after 18 May 2018. The Costs Appeal: the Claimant’s Response 97. For the Claimant, Ms Braganza emphasised that the application made in May 2018 was for the Respondent’s response to be struck out, alternatively for the Respondent to be debarred from defending the claim; the Claimant had made clear that, although he intended to make an application for costs, he would only seek his costs at the end of the proceedings. As for the effect of the ET’s first ruling on costs, the Claimant submitted as follows: (1) That first Judgment on costs had determined only part of a claim as regards costs (see the definition of ‘judgment’ for these purposes, as provided by rule 1(3)(b) Schedule 1 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 ). (2) The agreed note of that first Judgment on costs made clear the basis on which the ET awarded costs of four days: that is, because of the Respondent’s conduct of, and during, the hearing in May 2018 had added to the length of that hearing by four days. (3) In adjudicating upon the Claimant’s subsequent application for costs, the ET specifically addressed the point that the Respondent now relies on, and expressly distinguished its previous costs award of 18 May 2018 from its award of 12 June 2019. 98. When making its second costs award, the ET had not erred in its approach and had not re-opened or re-interpreted its earlier costs ruling. The Costs Judgment was founded upon the conclusions reached (as it had explained in its Liability Judgment) as to the Respondent’s unreasonable conduct over the entirety of the proceedings; the earlier ruling had related only to the four days that had been the subject of the first costs award, which were expressly excluded from the second award. Costs Appeal - Relevant Legal Principles 99. Res judicata is, as Lord Sumption JSC put it in Virgin Atlantic Airways v Zodiac Seats UK Ltd [2013] UKSC 46 , [2014] AC 160 , see paragraph 17, a “ portmanteau term ”, used to describe a number of different legal principles with different juridical origins. Whether, however, used to describe a cause of action estoppel, an issue estoppel, or to refer to the principle laid down in Henderson v Henderson (1843) 3 Hare 100 (all of which are relied upon by the Respondent in the present appeal), the underlying purpose of each of the concepts to which this term can refer is to limit abusive and duplicative litigation (see per Lord Sumption at paragraph 25).[100]The principles of res judicata apply to a judgment or decision issued by an ET under rule 61 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 ; which will include a determination by the ET of part of a claim as regards costs (see rule 1(3)(b)). The effect of this is that the administrative act of the issue of the ET’s Judgment will generally serve to prevent any subsequent claim that is founded on the same, or substantially the same, complaint being brought before the ET or other court or tribunal on the basis of the doctrine of res judicata (see Barber v Staffordshire County Council [1996] IRLR 209, CA, at paragraphs 28-33). To the extent, however, that the Respondent seeks to rely on the Claimant’s strike out application as demonstrating that his intention was to also put the question of costs in issue at that time, I bear in mind the need to proceed with caution, noting the express reservation of his right to apply for costs at the end of the proceedings (and see, by analogy, Sajid v Sussex Muslim Society [2001] EWCA Civ 1684 , [2002] IRLR 113 , and Srivatsa v Secretary of State for Health and another [2018] EWCA Civ 936 , [2018] ICR 1660 ). More generally, it is important to look to the substance of what a party has conceded by adopting or accepting a particular course of action in litigation; as Mummery LJ observed when considering the extent of a concession in Sajid : "by a neat, technical swipe the [Defendants] would have eliminated a substantial claim without any tribunal or court having heard any evidence or argument about it. That seems to be a decision to which this court is not driven by any principle of cause of action estoppel." 101. More specifically, when considering the application of res judicata principles to awards of costs, it is helpful to keep in mind the underlying purpose, which is to prevent duplication and abuse. Thus, the need to avoid duplicative litigation applies to a determination as to costs as to any other matter in issue in legal proceedings. As explained by Ward LJ in Carroll v Kynaston [2010] EWCA Civ 1404 , [2011] QB 959 , upholding the lower court’s refusal to open up the question of costs when there had been an earlier order (made by Field J) expressly stating there was “ no order as to costs ”,:[31]“31. … There must be finality in litigation. Making no order as to costs is an adjudication on the point and the court should not be required to have a second determination of the same issue. … The claimant's true remedy was to appeal the order actually drawn by Field J. He did not do so. He cannot now do so. He cannot now get by the backdoor what he failed to secure by opening the front door…. ” 102. As the Respondent submits, the application of the res judicata principles should further ensure that a party does not face double jeopardy in costs. In Ultraframe (UK) Ltd and ors v Fielding and ors [2006] EWCA Civ 1660 , [2007] 2 All ER 983 , the issue arose when considering the potential relevance of the court’s findings as to the dishonesty of the receiving party at both the stage when the initial order for costs was made and then at the assessment of those costs; as Waller LJ observed:
“34. … consideration of a party’s conduct should normally take place both at the stage when the judge is considering what order for costs he should make, and then during assessment. But the court will want to ensure that dishonesty is penalised but that the party is not placed in double jeopardy. …”
The Costs Appeal - Discussion and Conclusions 103. In making his strike out application on 16 May 2018, although the Claimant stated that he was seeking an order for costs against the Respondent, he expressly reserved any costs application to the conclusion of the hearing. Declining to strike out the Respondent’s response, the ET nevertheless went on to make an award of costs in the Claimant’s favour. It did so on the basis of what it found to be the Respondent’s unreasonable conduct at the hearing, specifically referring to issues that had arisen regarding disclosure and witness availability. Having determined that its costs jurisdiction was thus engaged, and that it was appropriate to make a costs award in respect of that conduct, the ET’s assessment was that this had resulted in the Claimant having incurred additional costs for four days. The ET’s first award of costs against the Respondent was, therefore, for the costs of the fifth-eighth days of the hearing. 104. Returning to the question of costs after the promulgation of its Liability Judgment, the ET made a second order in the Claimant’s favour, this time for one-third of his costs of the entire proceedings save for the four days that had already been the subject of the first award. In rejecting the Respondent’s argument that this offended against the principles of res judicata , the ET explained that the first costs award had been made “ because the respondent’s conduct had been disruptive and unreasonable regarding the piecemeal disclosure of documents and issues regarding witness availability during the hearing ”, which had led to the “ loss of the 4 days of the hearing ”. 105. The difficulty with that explanation is that it makes good the Respondent’s objection. In making the first award, the ET had determined that its costs jurisdiction was engaged by the Respondent’s unreasonable conduct in relation to disclosure and witness availability up to that date. It had then assessed the additional costs that had arisen from that unreasonable conduct as being the four days of costs arising from the need to extend the hearing as a result. Up to 18 May 2018, therefore, the ET’s assessment was that the Respondent’s unreasonable conduct of the hearing (in terms of disclosure and witness availability) had led to four days of additional costs, for which the Claimant should be compensated. Having made that determination, it was not open to the ET to re-visit the question of costs arising from the Respondent’s unreasonable conduct in terms of disclosure and witness availability up to 18 May 2018. That, however, is the effect of the ET’s subsequent ruling, when it made the second costs award at the end of the proceedings. 106. In the ET’s explanation of the second costs award, it again referred to the Respondent’s unreasonable conduct in relation to disclosure (see, for instance, paragraphs 19-21, Costs Judgment). To the extent that the ET was referring to the Respondent’s continuing unreasonable conduct in this regard, post-dating 18 May 2018 (unfortunately the problems with disclosure did not end on that date), no objection can be taken. Insofar as the ET’s second award also referred back to the Respondent’s conduct prior to 18 May 2018, however, it re-opened an issue it had already determined, placing the Respondent at risk of double jeopardy with the same unreasonable conduct up to that date being used as the basis of two separate costs orders. 107. That is not to say that the Claimant was entirely precluded from making any further application for costs in respect of the Respondent’s conduct of the proceedings prior to 18 May 2018. In pursuing his application in May 2019, the Claimant permissibly relied on matters relating to the Respondent’s conduct of the proceedings prior to the first costs award that were entirely discrete from the issues of disclosure and witness availability that had informed that first award. Thus, for example, he had relied on the “ very late concessions made by the respondent ” (see paragraph 12.1, ET Costs Judgment); although the concession in respect of the statutory defence under section 109 Equality Act 2010 had been made on the first morning of the hearing, the Claimant had not relied on that in support of his strike out application and it had not been taken into account by the ET in making the costs order in May 2018; this was a matter that went to the Respondent’s conduct of the proceedings prior to the first costs award but which had been the subject of no earlier costs determination. 108. Although the ET’s Costs Judgment does not expressly refer to such other matters as informing its second costs award, this was referenced in its Liability Judgment and the ET referred back to its earlier findings (paragraph 14, Costs Judgment), before descending into the problems of disclosure as “ but one example of how the claimant has been put to unnecessary extra work and costs due to the failings of the respondent ” (paragraph 21, Costs Judgment). Whilst, therefore, the ET erred in making an award of costs that re-visited an issue it had already determined, to the extent that the second costs award covered conduct prior to 18 May 2018, I do not infer that the ET only had in mind issues relating to disclosure and witness availability and it would be wrong to see the making of the first costs award as fatal to its ability to make a second award that related to other unreasonable conduct on the Respondent’s part, pre-dating the first award but forming no part of the ET’s first costs assessment. 109. Equally, the fact that the first costs award had arisen in circumstances in which the Claimant had put certain aspects of the Respondent’s unreasonable conduct in issue cannot mean that the Claimant was thereby precluded from making a subsequent application relying on different conduct that had also pre-dated the first costs ruling. The Claimant’s reliance on the Respondent’s “ flagrant ” breaches of disclosure orders and obligations informed his application to strike out the response; he thereby evinced no intention to deal with all aspects of the Respondent’s unreasonable conduct of the proceedings at that stage (indeed, he expressly reserved the wider issue of costs to the end of the hearing). Whilst the ET was entitled to see the matters raised by the Claimant as warranting a costs award (declining to strike out the Respondent’s response), its ruling did not thus eliminate any subsequent consideration of costs relating to other aspects of the Respondent’s conduct of the proceedings at that time, and the Claimant’s failure to expressly object to the course adopted by the ET (to the extent that it was ever open to him to do so) did not remove his right to rely on such matters in any later application. To suggest otherwise would be to entirely ignore the substance of that which was under consideration in the ET’s first costs ruling and that is not a course required by the application of res judicata principles in this case (and see, by analogy, Sajid v Sussex Muslim Society [2001] EWCA Civ 1684 , [2002] IRLR 113 , and Srivatsa v Secretary of State for Health and another [2018] EWCA Civ 936 , [2018] ICR 1660 ). 110. Although, therefore, I allow this appeal against the ET’s Costs Judgment, I do not consider it would be appropriate to simply restrict the second award to costs subsequent to 18 May 2018. That, in my judgement would fail to take any account of other aspects of the Respondent’s unreasonable conduct prior to that date, to which the ET was entitled to have regard when making its later award. Moreover, as Mr Tolley QC fairly acknowledged in oral argument, it might fail to properly reflect the ET’s intention given that its assessment of costs limited to one-third of those incurred by the Claimant arose from its adoption of a broad-brush approach that (erroneously) did not distinguish between pre-18 May 2018 costs relating to disclosure and witness availability and other costs relating to different aspects of the Respondent’s unreasonable conduct also pre-dating the first costs award. In the circumstances, in the absence of any agreement between the parties, the appropriate course must be to remit the question of costs back to the ET. Disposal 111. For the reasons provided above: (1) I allow the first appeal on Grounds 1 and 2, limited to the question of discount to take account of the future uncertainties of life as might impact upon the length of the Claimant’s working life and/or the length of his working day as assessed over the period allowed for future losses. This is a question that will be remitted to the ET. (2) I dismiss Grounds 3 and 4 of the first appeal. (3) I allow the first appeal on Ground 5, relating to the award made under section 207A TULRCA and the question whether it is just and equitable to make a 20% uplift once the totality of the sum thus awarded, bearing in mind the principle of proportionality, has been determined. This is also a question that will be remitted to the ET. (4) I further allow the second appeal. I direct that, absent any agreement between the parties, the issue of costs must be remitted to the ET. 112. The parties should file any written submissions they might wish to make on the remaining issues relating to disposal (in particular as to whether remission should be to the same or a different ET), to be received by the EAT at least 24 hours prior to the intended date for the formal handing-down of this Judgment. If the parties wish to make submissions on any other consequential matters, it would be helpful if these could be filed at the same time; failing which, the time-limits provided in the EAT Practice Direction will apply.