Appeal Nos. EATS/0022/02 & EATS/0023/02

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 13 December 2002

Before
THE HONOURABLE LORD JOHNSTON
MR A J RAMSDEN
DR W M SPEIRS

EATS/0022/02
MESSRS CAESAR & HOWIE	APPELLANTS

MISS VERONICA COSGROVE	RESPONDENT

EATS/0023/02
MISS VERONICA COSGROVE	APPELLANT

MESSRS CAESAR & HOWIE	RESPONDENTS

______________________________________________________________________________

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants (EATS/0022/02)	Mr D Williamson, Queen’s Counsel
Instructed by-
Messrs Brodies
Solicitors
15 Atholl Crescent
EDINBURGH   EH3 8HA
	
For the Respondent

For the Appellant (EATS/0023/02)
	Ms C Carr, Solicitor
Of-
Messrs Brechin Tindal Oatts
Solicitors
48 St Vincent Street
GLASGOW   G2 5HS

Ms C Carr, Solicitor
Of-
Messrs Brechin Tindal Oatts
Solicitors
48 St Vincent Street
GLASGOW   G2 5HS

For the Respondents	
Mr D Williamson, Queen’s Counsel
Instructed by-
Messrs Brodies
Solicitors
15 Atholl Crescent
EDINBURGH   EH3 8HA

LORD JOHNSTON:

1.	For almost 25 years the respondent employee was employed by the appellant employers as a legal secretary.  In 1996 the partnership split up which had the result of the respondent becoming increasingly unhappy with her work and her rôle in the firm and she developed depressive illness problems which resulted in her going off work.  In November 1997 she was disciplined over allegations of bullying newer members of staff which distressed her, particularly, in receiving a final written warning.  Subsequent to that event, she went off work and never, in fact, returned to work for the appellants.  She was dismissed in March 1999 on grounds of capability, the whole background being a depressive illness from which she still suffers.  The undisputed medical evidence is that she has been, since her dismissal, and well before it, indeed, for a whole year, incapable of performing any work duties on behalf of the appellants and this crucial finding underlies the whole issue that was developed before us.

2.	The respondent took her case to the Employment Tribunal alleging both unfair dismissal and disability discrimination.  At the original hearing in a judgment issued over six months after the completion of the hearing, a length of time which must be categorised as wholly inappropriate, the Employment Tribunal ruled that the respondent had neither suffered unfair dismissal nor disability discrimination.  She appealed that decision to this Tribunal, which in a decision dated 17 May 2001, from a panel chaired by the then President, Mr Justice Lindsay, ruled that there had been disability discrimination on a very narrow front, namely, a failure on the part of the employer to consider the question of reasonable adjustments in relation to the employee’s work while still in their employment.  All this against, however, the background that she was, at the material time, that is to say, at the time of dismissal and before, incapable of carrying out any form of employment duties on grounds of ill-health.  Against that background, however, this Tribunal remitted the matter back to the Employment Tribunal to consider the question of remedy.  In due course, that Tribunal made an award to the employee of a total sum of £53,219, reflecting compensation for loss of earnings, both past and future, a claim for personal injury and injury to feelings.  It was recognised by both parties that that Tribunal had made an arithmetical error and the proper award should have been, on the basis of their calculations, £43,219.  This appeal is taken by the employers against that ruling.

3.	At the outset of the hearing before us, Mr Williamson, Q.C., appearing for the appellant employers, sought leave to identify two additional grounds of appeal.  One, to the effect that there was no room for any award of compensation by reason of the evidence in relation to ill-health and, secondly, that the Tribunal below had failed to take account of benefits received by the employee.  We allowed these grounds to be considered without prejudice to whether, at the end of the day, it was too late or not to have introduced them.

4.	Mr Williamson’s fundamental position was that no loss, in fact, had been suffered by the employee in relation to disability discrimination because all the problems to her health arose from the fact of dismissal which was categorised by the Tribunal below, as fair.  Accordingly, the finding by this Tribunal of disability discrimination added nothing to that particular position.  In any event, for discrimination to be sound in damages, there had to be very clear evidence supporting that position.  He referred to Buxton v Equinox Design Ltd [1999] IRLR 158.  Since she was, admittedly, it was submitted, unfit for work at the time of dismissal, she had no right to return to work in the future when her contract had been lawfully brought to an end.  There was not even, it was submitted, a certainty or, even probability, of a return to work, given the health position.  Mr Williamson went on to submit that, in any event, a quite separate supervening medical condition relating to the upper arm prevented her from working and, as such therefore, broke the chain of causation.  There was no evidence, he submitted, that the employers could make adjustments to accommodate that position.  He reiterated his submission that, in any event, the Tribunal should have taken into account the question of benefits to be deducted from any loss of earnings.

5.	He went on to submit that the same considerations applied to the claim for both personal injuries and injury to feelings.  If there was room for an award under any of those headings, it would only be on the basis of aggravation and not upon the full award that the Tribunal had made.  He referred us to various authorities as to what the appropriate level of damages should be in that context.

6.	Miss Carr, appearing for the employee, submitted that the whole approach by Mr Williamson represented a complete change of tack, both in fact and law, which had not been rehearsed before the Tribunal below and, therefore, came too late.  She based her position on Jones v Governing Body of Burdett Coutts School [1998] IRLR 521.  This Tribunal, accordingly, should not consider the position at all.  If we were prepared to do so, she submitted that, in any event, the Tribunal was entitled to make awards based on the fact that discrimination on disability grounds had been made out.  She also had a cross-appeal against the levels of award for both personal injuries and injury to feelings as being far too low and submitted various authorities in support of that position.

7.	The issue focussed by Jones supra caused us initially some difficulty because there is no doubt that the interface between the fact of a fair dismissal and the fact of a finding of disability discrimination did not appear, on the face of it, to be properly considered by the Employment Tribunal at the second hearing.  We recognise that the right of an appellant to introduce new grounds of appeal before this Tribunal is very limited but can be exercised in appropriate circumstances.  One of those circumstances is where the point to be introduced is, in the opinion of this Tribunal, essential to the resolution of the basic issues between the parties.  This, in our opinion, is the case here where we consider it absolutely crucial to the overall position to reflect upon the existence of both a fair dismissal and a finding of discrimination for disability reasons to determine how they inter-react.   While we, therefore, sympathise with the position of Miss Carr, we are prepared to allow the argument submitted by Mr Williamson in relation to his basic fundamental submission.  When it comes, however, to the questions of novus actus interveniens in relation to the upper arm condition, we are not prepared to entertain that argument because the evidence below does not disclose whether it is psychologically based or, indeed any base for it at all, nor is there any evidence to suggest to how long it might have lasted.  Equally, when it comes to the issue of benefits, we think this is raised too late and, in any event, raises questions of fact which would make it inappropriate or, indeed, impossible for us to deal with.  One of the issues to be determined in allowing late grounds of appeal, is whether, if in so doing, further evidential questions arise, if they do, normally, this Tribunal will not entertain the new ground, thus, we will not accept any argument relating to benefits.

8.	However, we are required to consider the fundamental question relating to the inter-reaction of a fair dismissal with a finding by this Tribunal of disability discrimination.  In so doing, it is important to bear in mind that this Tribunal, in its previous hearing and decision, merely determined that there was an issue of disability discrimination because of the failure on the part of the employer to consider any form of adjustment in the workplace.  However, this Tribunal merely considered that to be not crucially decisive of the matter leaving it open to determine whether or not any adjustment would have been practicable leading, therefore, to some finding of loss requiring a remedy.  We repeat it is crucial to our consideration of the matter that the Tribunal left the position on that basis.  It would have perhaps been more clear if the Employment Appeal Tribunal, in remitting it back to the original Employment Tribunal, had qualified that remission with the phrase “if any” with regard to remedy.

9.	In our opinion, the question to be asked against this very unusual situation, where the factual evidence reveals that the entire health problems of the employee initiating it in the workplace prior to dismissal, were, subsequent to the dismissal, wholly related to the facts of it and nothing else.  There is no evidence to suggest that the employee ever made herself available for work on an adjusted or limited basis or even contemplated that such should be done.  The critical question therefore to be asked is whether or not the finding of discrimination made by this Tribunal has added any dimensional element to the health problems of the employee which would give rise to a separate remedy.  The answer, upon the evidence, has to be in the negative. She was not fit for work at the time of dismissal and even if such is to be regarded as the discriminatory act, she was not fit for work thereafter, as the Tribunal below recognises, since it did not make any award for loss of earnings for the first year after the dismissal.  We are therefore driven to the view that there is no basis for making any form of compensation for loss of earnings in relation to the alleged discrimination.

10.	Thereafter, we have to consider whether the Tribunal was right to make an award for both personal injuries and injury to feelings.  We answer both those questions in the negative upon the basis that there is nothing in the evidence to suggest that any of the employee’s problems related to the separate question of discrimination.  There is no evidence to suggest that she even considered at the time that she had been discriminated against nor that there is any grounds for solatium or the equivalent in relation to both the personal injuries claim and injury to feelings.

11.	We are therefore driven to the conclusion that the finding by this Tribunal that there was an element of disability discrimination adds nothing to the pursuers claim which would require to be based entirely on the fact of dismissal and its consequences in health terms.

12.	For these reasons we consider that the Tribunal below fell into error by making any award under any of the heads that it did.  We have great sympathy for the position of the employee, given her health problems, but we do not consider that she is entitled to any compensation thereanent, by reason of the fact that the dismissal or termination of employment was determined by the Employment Tribunal to be fair and no issue is now taken in that respect.

13.	In these circumstances this appeal will be allowed and the decision of the Employment Tribunal will be quashed.