Appeal No.UKEAT/132/04/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 September 2004

Before
HER HONOUR JUDGE WAKEFIELD
DR S R CORBY
MR J HOUGHAM CBE

MRS J A COOKE	APPELLANT

(1) THE GOVERNING BODY OF GILLOTTS SCHOOL 
(2) OXFORDSHIRE COUNTY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DESHAAL PANESAR
(of Counsel)
Instructed by:
Free Representation Unit	
For the Respondent	MR JACK MITCHELL
(of Counsel)
Instructed by:
Oxfordshire County Council
Legal Services
Macclesfield House
New Road
Oxford  OX1 1NA	

SUMMARY

Unfair Dismissal

Alleged perversity and failure to take into account relevant evidence as regards mitigation of loss.

HER HONOUR JUDGE WAKEFIELD

1.	This is an appeal by Mrs Jane Cooke from a Decision on remedy only, made by an Employment Tribunal sitting at Reading, by which Mrs Cooke was given, in addition to a basic award, a compensatory award equivalent to four months’ full salary and 25% of salary for a further eight months.  At a previous hearing on the merits of the Appellant’s claim to have been unfairly dismissed, the same Employment Tribunal had found in her favour for procedural reasons.  

2.	The background facts, which are very fully set out in the two Decisions, can be briefly stated for the purposes of this appeal.  The Appellant was employed by Oxfordshire County Council as a science teacher at Gillotts School in Henley-on-Thames from 1 September 1997.  In September 2001, she chanced to see on her personal file at the school, a reference which had been prepared in respect of her at a time when she was applying for a job in Bahrain.  From what she saw of the appraisals of her work in that reference, she considered it inaccurate and unfair.  A few days later she received a letter from the Head Teacher, also containing matters to which she took exception.  The Appellant raised her concerns with the Head Teacher and subsequently with others, including the Oxfordshire County Council.  She became ill with stress and was away periodically from work initially.  She raised a formal grievance and after 16 November 2001 she never returned to work at the school and resigned on 12 September 2002.

3.	Relevant findings in the Merits Decision, so far as the Remedy Decision which is the subject of this appeal are concerned, are firstly that the Respondent committed a fundamental breach of the Appellant’s contract of employment by failing to provide a forum to deal with her grievance.  That finding is set out at paragraphs 13 and 14 of the Merits Decision and in particular of relevance today are the following passages:
“…an employer is obliged to provide a forum for dealing with grievances and in this particular respect they failed to do so.  This was a fundamental breach of contract entitling the applicant to resign and claim constructive dismissal….However we have not found the applicant’s case proved in its entirety and we have not found for example that there has been a succession of breaches of contract by the respondent resulting in a “last straw” situation as the applicant argues to be the case.  What we have found is one fundamental breach of contract…”

4.	The other relevant finding in the Merits Decision is that the reference itself had been prepared with due care and skill.  The Tribunal in the Remedy Decision refer to that in their paragraph 7 (l).  They say:

“…the Tribunal has already found that the reference provided by the respondents was not at all bad and secondly that the Head Teacher exercised due care and skill in the preparation of that reference.  We found no breach of contract in this respect…”

5.	At the Remedies Hearing, the Employment Tribunal heard evidence from the Appellant and, on behalf of the Respondents, from Mr Vallis who provided information as to the availability of employment as a science teacher.  They also read two letters from the Appellant’s General Practitioner and looked at sick-notes covering the entire relevant period.

6.	The Tribunal set out the relevant factors which they took into account.  They set out the appropriate sections of the Employment Rights Act 1996 and in particular referred to the provisions as to any compensatory award depending upon causation between the dismissal and the loss.  That is section 123 (1), which provides

“…the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”

7.	In paragraph 7 of the Extended Reasons in subparagraphs (i), (j) and (k) and part of (m), the Employment Tribunal said this, (and I read only parts of those subparagraphs):

“(i)	…Under Section 123(1) we are dealing with the loss sustained by the applicant in consequence of the dismissal, so far as that loss is attributable to action taken by the respondent.  The applicant's alleged loss in not being able to apply for a job flows from the personal injury and not from the dismissal.  Her alleged inability to mitigate flows from that injury.  According to the applicant herself, it is because of the injury that she has been unable to mitigate her loss.
(j)	We have been careful, therefore, not to make an award which could be tantamount to providing a remedy in an area where we are not able so to do.  Although the applicant is not claiming for non-economic loss as such, her claim for loss in relation to her alleged inability to mitigate stems from her personal injury and not from the dismissal. 
(k)	The medical evidence which the applicant has produced we find in no way convincing and certainly not such as to persuade us of details of a specific medical condition.  One would need more weighty evidence than this in any event to make a finding of personal injury consequent upon the dismissal, with loss being attributable to action taken by the respondent….”

They then concluded in their paragraphs 8 and 9 as follows:

“8	We feel that it would be just and equitable in all the circumstances to grant the applicant her full loss of wages for four months, after which time she would be reasonably expected to have obtained at least some supply work and then a full-time position from September 2003 if not from the Easter term.
9	We recognise that supply teaching might not turn out to be completely continuous.  It would provide more or less the same remuneration benefits as for permanent work.  Accordingly, we will award for a period of eight months the applicant's wage but at 25% to recognise the potential shortfall in work of supply teaching.”

8.	By the amended Notice of Appeal, which has been expanded in oral argument before us today by counsel on behalf of the Appellant, the Decision is said to be wrong in law on the basis that the finding that the Appellant would reasonably have been expected to have obtained at least supply teaching work after four months was unsupported by any evidence, was contrary to the medical evidence, and was perverse.  In arguing that the Decision was contrary to the medical evidence, it is pointed out on behalf of the Appellant that the Employment Tribunal had said in the Decision on the merits, at paragraph 15, the following:

“Following the decision of the Appeal Panel issued to the applicant on 22 August 2002 the applicant did not resign until 12 September some three week’s later.  During that time the applicant was away from work sick due to depression and we accept her evidence that following the decision of the Appeal Panel her existing depressive state was worsened and she had difficulty in thinking about her situation.”

It is argued that given that finding the Appellant had no reason to believe that the Employment Tribunal at the Merits Hearing would not fully accept the medical evidence which was presented to them.  The GP was not present, the letters were put before the Tribunal, as were the sick-notes.  It is said that to then reject the medical evidence, as it is asserted the Tribunal did, was contrary to the only relevant evidence on that issue and was perverse.

9.	We have been unpersuaded by this argument.  What was at issue at the Merits Hearing was not the medical condition of the Appellant in the period 6 December 2001 to the date of the hearing, all of which period was covered by doctors’ sick-notes diagnosing the disorder as either stress or stress/depression and advising that she refrain from work for various periods specified.  The issue was: what was the loss sustained in consequence of the dismissal?  A doctor’s opinion was in evidence, being that in this case of a GP, as expressed in the letter which the GP had written on 3 November 2003 to this effect:

“This is to confirm that Jane Cooke is not fit to work entirely because of her treatment by Gillott’s School and Oxfordshire County Council, and will not be able to do so until all the allegations are fully investigated.  She is not in any position to be able to consider applying for a job as the situation has not been resolved and she would still be unable, for example, to supply references.”

That opinion need not be accepted by an employment tribunal since it clearly goes beyond pure medical issues.  

10.	Nor can we accept the criticism of the Employment Tribunal for having, in their paragraph 7 (k), taken into account on the issues of causation and mitigation of loss the Appellant’s apparent capabilities in presenting her case to the Employment Tribunal.  What they said on this matter was the following: 

“The applicant was suffering from stress but nonetheless she was able to mount an Employment Tribunal claim, representing herself at this Tribunal over a period of three days, without any kind of legal assistance.  She prepared a very detailed case with much preliminary paperwork and it was well conducted.  This she was able to do.  Her doctor has said in one of the reports that she had fought her depression by keeping herself busy.  We wonder, therefore, why she was not able to keep herself busy by applying for other employment.  However, we accept that it would not have been unreasonable for the applicant to delay for a certain time before embarking on job applications because of her stress and upset, but in our view this cannot be of indefinite duration.  Having given consideration to all the facts we believe it would have been reasonable to have expected the applicant to have started making applications for jobs so that she could perhaps take on a supply teaching position some time during the beginning of January 2003.

11.	We are satisfied that these were proper considerations and that the approach and conclusions of the Employment Tribunal overall were correct in law.  This appeal is dismissed.