Appeal No. UK/EAT/0593/03/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 December 2003

Before
HIS HONOUR JUDGE ANSELL
DR K MOHANTY
MRS R A VICKERS

QUANTUM BUSINESS MEDIA	APPELLANT

MARK HAYES	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	ALISON RUSSELL
(Of Counsel)
Instructed by:
Messrs Argles Stoneham Burstows  Solicitors
Stoneham House
17 Scarbrook Road
Croydon
Surrey CR0 1SQ	
For the Respondent	THOMAS COGHLIN 
(Of Counsel)
Instructed by:
Messrs Thompsons Solicitors
Congress House 
Great Russell Street
London WC1B 3LW	

HIS HONOUR JUDGE ANSELL

1	An Employment Tribunal sitting at London South on 4 and 5 December 2002 and 22 – 25 April of this year decided that Mr Hayes was unfairly dismissed and discriminated against by reason of his disability, that disability was mental illness and depression that had resulted he claimed from earlier bullying and harassment within the employer organisation.

2	The reasons for that decision was promulgated on 21 April 2003 although we understand that outline reasons were in fact given orally by the Tribunal on the last day of the hearing which would have been 25 April.  What followed that afternoon was a further hearing to deal with the issue of remedies and the appropriate compensation to be awarded.

3	It may well be that on the facts of this particular case it might have been better to study the detailed reasons for the award in respect of merits before passing on to the liability hearing but that must always be a matter for the Tribunal’s discretion as to how they approach these matters.  

4	In any event that afternoon 25 April they dealt with remedies and in a written decision given on 6 June of this year they awarded total compensation in the sum of £94,719.00 plus interest of £843. 00. 

5	The major components of that award were in respect of past and future losses of salary coupled with injury to feelings and also personal injury namely in this case damages for psychiatric damage.

6	This being a discrimination case although it was also a dismissal case, it is of course agreed that it was open to the Tribunal not only to award damages in respect of the discrimination, which was said to be the manner in, which the disciplinary and appeal process was carried out but also the fact of dismissal in itself, since the dismissal became unfair because of the less favourable treatment given to the person with the disability Mr Hayes and to deal with his disability properly in the course of those of proceedings thereby rendering the dismissal unfair and therefore damages were of course at large.

7	Leave for this hearing was given by Judge McMullen in Chambers on 30 July.  The grounds of appeal deal with a number of aspects of the award made by the remedies decision which we have considered carefully.   

8	The Tribunal made an award of injury to feelings of £15,000.00 in accordance with the guidelines in Vento v Chief Constable of West Yorkshire Police (2003) IRLR 102  and £843.00 interest, and in addition awarded a further £10,000.000 expressed to be for personal injury and we have indicated that was in respect of psychiatric harm flowing from the discrimination.  

9	The general grounds of appeal in respect of that award are firstly that those awards were excessive and in particular the Tribunal in dealing with both heads failed to make clear the fact that they were only awarding losses in respect of the statutory torts which in this case were the events of discrimination arising after the middle of May 2001, and for the stress and anxiety caused by those events coupled with one additional factor which was the cancelling of sick pay after a very short time, rather than compensating for the disability itself and for the bullying and harassment that had occurred.

10	It is also said that the Tribunal duplicated both awards failing to distinguish properly between matters which would be the subject of an award of damages for psychiatric harm and matters which would be the subject of an award for injury to feelings.

11	The second limb of the appeal relates to the award of loss of earnings past loss of earnings from 19 September 2001 to the date of the Tribunal award taken to be the 22 April 2003, and future of loss of earnings which were given for a period of three years after the Tribunal hearing on a graduated basis.  

12	It is argued that the Tribunal ignored a piece of evidence which was before them in a report from a psychologist suggesting that it was a conscious decision made by Mr Hayes not to undertake any further work or particularly journalism until such time as the Tribunal proceedings had been resolved and therefore he failed to mitigate losses after the date when that comment was made which was around the 20 June 2002.   

13	As it happens on the facts of the case he had returned to part-time work in October 2002, and therefore, the suggestion that he was only willing to return to work after the Tribunal proceedings was not made out on the facts of the case.   It is said however, the Tribunal made no clear finding on that issue as to whether they preferred the evidence that Mr Hayes himself had given coupled with other medical evidence to suggest that he was not fit to return to work other than in the way that he did namely part-time and later full time or whether they accepted the report from the psychologist to, which we made reference above.

15	The Appellant actually applied for a review of these two issues and we refer to the decisions given by letter from the Chairman refusing to undertake a review of those two decisions.

16	The background facts are that from the 1 November 1993 to 19 September 2001, when he was dismissed for gross misconduct relating to the alleged submission of a false invoice for work particularly articles allegedly written by his wife which were in fact not written by her, the Respondent was an editor of a Trade Journal entitled Hotel and Restaurant and he was successful in that position and certainly on one occasion won an Industry Award.  

17	Problems seemed to have arisen with regard to his line manager Louise Stevens and the Deputy Chief Executive Ms Traynor.  There was a background allegation of bullying and harassment.  The Tribunal made no specific findings with regard to that background, dealing with the matter as they did in paragraph 4 of the Merits Hearing in the following way:-  “The Tribunal eventually cut  some of this evidence short pointing out there was not and could not be any claim before this Tribunal of bullying and harassment outside the range of statutory prohibited discrimination.  The Tribunal pointed out the evidence of bullying and harassment before May 2001 was, at best, background information”.   That view was correct; such bullying and harassment could possibly the subject of a claim for breach of contract based on a breach of trust and confidence but were not matters that would be the subject of Tribunal decisions, since Tribunals cannot deal with claims for damages for personal injury arising out of breaches of contract being excluded from their jurisdiction. So it seems to us the Tribunal were right in approaching those matters that way.  

18	 However the bullying and harassment it is suggested caused Mr Hayes to become stressed and depressed.  There was some evidence of some family problems with a family history of depression but the medical evidence all pointed to an onset of depression unfortunately, quickly and fairly suddenly in May 2001.  He lost his voice, he stayed off work and in fact never returned to work.  As a result of the stress and anxiety thereafter he had no direct contact with his employers whatsoever.

19	There was evidence from one doctor that the illness, which was later categorised for the purposes of the Disability Act as a disability since it lasted for longer than a year, reached its peak in May 2001.  As we have indicated problems arose over an invoice he had submitted just before he was taken ill on 7 April 2001.  The invoice sought payment said to be due to his wife for articles that she had written for his journal totalling £1,209.20 in respect of work done by her for the April issue of the magazine.  

20	There was no dispute that four of those articles were in fact written by somebody else and more than £600 worth of that invoice did not belong to his wife.  The discrimination was said to arise firstly because within a fairly short space of time of his being off work, because he did not communicate with his employers, his sick pay was stopped and there is a finding within the Tribunal decision on merits that constituted an act of harassment and discrimination. 

21	The other acts of discrimination related as we have indicated above to the investigatory, disciplinary and appeal process.   The disciplinary hearing was on 14 September and the Tribunal found that that process was fatally flawed because it failed to make allowance for the disability in other words the stress and depression from which he was clearly suffering at that time.  And there was a fairly robust criticism of the employer’s behaviour throughout that process continuing into the appeal process which was heard on 18 October after the effective date of his termination.  That appeal process, again it is said did not make proper allowance for his illness, for his absence and for other aspects connected with his disability.

22	The findings on disability are set out in paragraph 26-30 of the Tribunal decision.  We need not refer to them in detail they were accepted by the Tribunal as the basis for their remedies award and they concluded in paragraph 30 by finding that the dismissal was the causal outcome of the discrimination contrary to Sections 5(1), 5(2) and 6 of the Act which effectively gave the Tribunal power to award losses not only for the pre-dismissal discrimination but the act of dismissal itself.

23	The compensation that was awarded was set out in the second Tribunal decision.  They dealt first of all with the issue of losses and awarded the losses past and future that we had indicated.   

24	It is right to say that they did not deal specifically within those two paragraphs 1 (i) and 1(ii) with the contention that he was staying away from work deliberately until the Tribunal proceedings were concluded.  

25	That suggestion had emerged from the report of a psychologist on page 52 of the bundle. In a report dated 27 June 2002 from Doctor Albert it said this: “Reporting about an interview with Mr Hayes in June 2002.  It appears that his mild level of symptomatology is related to his decision not to engage in journalism before the industrial tribunal.  Unfortunately this decision maintains his feelings of frustration and anxiety over his career.  Mr Hayes is aware of this and we have discussed some projects that he can engage in without hindering his claim”.

26	The Tribunal by implication it is said clearly accepted the evidence from Mr Hayes that he was not able to start part-time work until the following October 2002 when they awarded him his loss of earnings up to 22 April 2003 and thereafter future losses.  His lawyer had argued for four years future losses and he ended up with three years future losses on a graduated basis.  Further it is argued that the inference to be drawn from that is that they rejected the notion that he was not working because of the Tribunal proceedings, clearly refuted by the fact that he had started part-time work previous October.

27	The failure to deal specifically with Doctor Albert’s report was raised as one of the issues in the request for review. The Chairman’s answer to that issue was follows:  “The Tribunal took into account all the evidence raised in mitigation primarily being of the opinion the Applicant was unfit for such work until he began to seek part-time editorial work”.  It is contended that sentence which if it be needed cures any defect in the original Tribunal decision.  There are many authorities that parties must know why they have won and lost and that was of course stressed most recently in Tran  v Greenwich Vietnam Community [2002] IRLR 735.  Whilst there was no specific statement to Dr Albert’s report in the fact finding of the Remedies Hearing it is a matter of whether one has the overall feeling that the parties have enough information to know why they won and lost.

28	In our view there was clear acceptance of Mr Hayes’s own evidence in the Tribunal decision.  The incontrovertible fact that he had started work in October albeit part-time plus other medical evidence which pointed to a depressive illness continuing into 2003 coupled with the additional finding in the Chairman’s letter on page 33 that they accepted his evidence was sufficient to deal with that aspect of the case and that we find no error on the part of the Tribunal.

29	The same however, in our view cannot be said about the way the Tribunal dealt the injury to feelings and personal injury.   There is always a difficult overlap between these two areas, the more so when the victim is already suffering from a form of disability which relates to mental illness.  The Vento guidelines make it clear that with regard to injury to feelings one is primarily looking at the affect of the discriminatory acts on the person in terms of their feelings, giving consideration to the nature of the episodes, the seriousness of the discrimination and the duration.  Personal injury, in this case, psychiatric harm relates to whether there is evidence often medical indicating that the particular employee has suffered some form of psychiatric harm from the discrimination. Where the Tribunal in our view have clearly fall into error with regard to both these heads of loss is that although in the merits hearing they clearly realised that they had to deal with events post May 2001, that line of thinking did not follow its way through when they came to deal with how they were going to deal with the assessment of personal injury and injury to feeling losses.

30	It is trite law that the Tribunal must award losses for the statutory tort that is being committed.  The statutory tort in this case are the various acts of discrimination.   One takes the person with his disability as at May 2001 and one must ask oneself the question  namely what has been the effect on him post May 2001.  With regard to psychiatric harm it is really agreed by both parties the appropriate test the Tribunal had to ask themselves which they did not set out is whether his condition as it was in May 2001 has been aggravated, exacerbated or prolonged by the events that occurred between May and October 2001.

31	There was a hint of that approach within the Tribunal’s findings on injury to feelings.  They refer to first of all the effect of harassment during sickness; that was an error because they had not found any harassment during sickness.  They refer to the termination of sick pay that was one of the acts of detriment and they refer to the loss of an enjoyable job relating presumably to the dismissal which was also part of the discrimination.  But they then went to speak about the load placed on his wife by reason of his incapacity.  Unfortunately that does not distinguish between the incapacity as it was post May 2001 or pre May 2001.  They also found this that the incapacity reached a level of disability solely because of the Respondent’s failure to take reasonable actions to accommodate the situation. That finding was contrary to the medical evidence which suggested that the injury in terms of the psychiatric harm had reached its height at May 2001.  The Tribunal then return to the mental effect on an able and productive person of practical inability to undertake any productive work or face any sort of mental effort.  Again they are not distinguishing in that finding between the post and pre May situation.

32	Thus save for the first line of those findings which deals with the termination of sick pay and loss of an enjoyable job, they do not ask themselves the appropriate question namely what is the appropriate award for injury to feelings bearing in mind the detriment from which he has suffered during those five months.  

33	Similarly when the Tribunal deal with personal injuries they speak of the substantial degree of adverse affect on the Applicant’s family relationship.  Again that does not distinguish between the pre or post May neither position nor does the finding of the effect of his ability to cope with both life and work.    

34	Finally at the end of their decision they refer to the actions  of the employers that caused “very substantial and long lasting damage to the Applicant”.  It is not clear from the medical reports how they are able to reach that finding, although clearly taking, as indeed we would on the facts as found, a very serious view of the act of discrimination in this case.  	

35	It may well be that the Tribunal were to a certain extent hampered by the fact that the various medical reports had not sought to address what we regard as the key feature in this case, which was the test that we have propounded namely what was the effect of the discrimination in its various forms between May and October both on his depressive illness and also on his feelings generally.  Had the medical reports answered that question it may well be that that would have guided the Tribunal into what we regard as the correct areas.

36	It was argued forcibly on behalf of Mr Hayes that if one looks at the merits decision where the Tribunal clearly has the right test in mind looking at the events after May, coupled with the general findings to which we made reference at the end of the remedies hearing  concerning the seriousness of the conduct that should lead us to form a view the Tribunal did indeed assess losses correctly.  We are not so satisfied.  We are of the unanimous view that the Tribunal has fallen into serious errors with regard to how they dealt with the issue of injury to feelings and personal injury and particular a failure to distinguish between the effects of the detrimental discriminatory treatment as opposed to the state of his health as it was in May 2001.

37	There is no alternative other than for this matter to be remitted back to a Tribunal for a re-hearing  of those aspects of this case and we would consider appropriate if it possible there should be further medical evidence to answer the appropriate questions that we have raised.  

38	The issue remains whether it should be the same Tribunal or a different Tribunal and that is a difficult decision.   Obviously this Tribunal heard the evidence on merits and  there is no criticism of the merits decision.  Indeed it seems to us they approached that task with considerable skill  with a careful decision.  Clearly they have well in their minds the events that caused them to come to the view that they did.  On the other hand it is argued by Ms Russell on behalf of the Appellant that bearing in mind that the Tribunal has formed their view about the seriousness of matters in terms of the award they made in terms of injury to feelings and personal injury, there was risk that they would still be rather over sympathetic towards the employee in this case and not able to take as it were a properly objective view of their approach in the light of the guidance that we have given.  

39	It is also argued that remitting to a fresh Tribunal may add to costs in having to revisit the background to the case. On balance we have come down in favour of remitting this matter to a fresh Tribunal.  We think it appropriate that the Tribunal considering the matter should not in any way to be seen to be tainted by any previous award that they had given.  These were substantial awards and in our view ought to be reconsidered.  

40	We would only say this that we share the Tribunals view that this was a serious act of discrimination and it may well be at the end of the day that the awards they made certainly for injury to feelings was an appropriate one even if they had conducted the correct fact finding approach.  That will however, will be a matter for a new Tribunal to consider.   So we would invite them to consider the issue of injury to feelings and personal injury directing them to consider particularly as far as personal injury is concerned whether the events after May 2001 and the specific acts of discrimination found by the merits hearing either aggravated, prolonged or exacerbated the illness from which he was already suffering.  

41	We feel confident that the new Tribunal dealing with remedies can take the background facts from reading the merits decision about which as he has already indicated there is no criticism.  

42	With regard to injury to feelings similarly they must consider the affect of the detrimental acts upon Mr Hayes’s feelings and orders how they  may have been aggravated over and above how he was feeling in the middle of May 2001.  

43	The Tribunal obviously would be mindful of what passed before but, they must be careful in their decision to draw a distinction between how he was before 15 May and how he became afterwards.  We trust that gives sufficient guidance in the matter.  If there is any particular matters that counsel feels which we also made reference to then we will certainly add that to it.  We are grateful to both of you for an interesting argument that you both presented.