Appeal No. UKEATS/0010/13/BI
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At
the Tribunal
On
21 June 2013
Before
THE HONOURABLE LADY STACEY
MR M SIBBALD
MRS G SMITH
CARR
GOMM SCOTLAND LTD APPELLANT
MR
ANDREW SNEDDON RESPONDENT
JUDGMENT
THE
HONOURABLE LADY STACEY
Background
1.
We shall refer to the parties as the Claimant and Respondent, as in the
ET. This case has a complicated history in that it was decided by the ET that
the Claimant had been unfairly dismissed. The Respondent appealed to the EAT
which overturned the decision of the ET. The Claimant then appealed to the
Court of Session which restored the decision of the ET. The appeal before us
relates to the remedy.
2.
The Claimant was employed as a care worker by the Respondent. The Respondent
at the relevant time was a charity limited by guarantee, had 700 employees
and provided social care for people with a wide range of impairments, health
problems and ages. It was funded by local authorities. An allegation was made
against the Claimant in connection with his care of a particular client. The Respondent
dismissed him and after the procedure outlined above the Claimant was
successful in a claim that that dismissal was unfair. The ET had found that
the Claimant contributed to his dismissal to the extent of 35% and they
made a reduction of that percentage from his compensation.
3.
By a judgment copied to parties on 27 April 2010 the ET, sitting at
Edinburgh found that the Claimant had been unfairly dismissed by the Respondent
and ordered the Respondent to pay to the Claimant a monetary award in the sum
of £27,227.60. That decision was the subject of a successful appeal to
the EAT. That latter decision was the subject of a successful appeal to the
Court of Session. By a judgment dated 20 March 2012, the Court of Session allowed
the Claimant’s appeal against the EAT decision and restored the finding of the
ET that the dismissal was unfair. No question or dispute was raised concerning
the amount of contribution. The Respondents did however raise an issue
regarding the ET’s calculation of compensation. The Court of Session
accordingly stated:
“However, in their appeal to the EAT the respondents raised an
issue respecting the ET’s calculation of quantum, it being contended that the
ET should have left out of account the patrimonial results stemming from the
difficulties encountered by the appellant in obtaining employment because of
the adverse information contained in his ‘enhanced disclosure’ that being, it
is said, not a matter which was the responsibility of the employer. The EAT
did not express a concluded view on that issue and in the circumstances both
parties considered that the case would require to return to the EAT in order
that it decide that aspect of the respondents’ appeal to it. We shall
therefore allow the appeal but return the case to the EAT for it to determine
that particular aspect of the ET’s assessment of quantum.”
4.
As a result of that judgment, the EAT on 23 April 2012 made the
following order:
“The tribunal orders that paragraphs 3, 4 and 5 of the
judgment of the Employment Tribunal be set aside and that the case thereafter
be remitted to the same tribunal to consider of new but on the facts already
found, the issue of what compensation, if any, should be awarded to the
claimant.”
5.
The ET considered the matter in light of the order of the EAT and by a
judgment copied to parties on 22 January 2013 decided that the Respondents
shall pay to the Claimant a monetary award in the sum of £14,487.61. In
so doing, it applied the same 35% deduction which it had in the first
award. It is against that decision that appeal is now taken by the Respondent.
The issue
6.
When the Claimant was dismissed by the Respondent he was told that the
type of behaviour which the Respondent believed he had indulged in was a serious
breach of the Carr Gomm Scotland Code of Conduct. A report of the matter was
made by the Respondent to the Social Services Committee of the local authority
and they had involved the police. As a result of that an entry was made
against the Claimant by the local authority to Disclosure Scotland (an
executive agency) which was available to prospective employers seeking enhanced
disclosure in connection with future employment. That entry was in the
following terms:
“Central Scotland Police confirm that in November 2008 the
applicant was the subject of an investigation after his conduct towards a
client had been reported by an independent party as aggressive. The enquiry
established that no crime had been committed, however it was agreed that it
would be appropriate that he would not care for the client mentioned and his
working practices would be monitored.”
7.
It was accepted that the Respondent and the local authority were under a
duty to make the report which led to the entry being available under enhanced
disclosure.
8.
At the ET the remedy sought by the Claimant was that of reinstatement.
There was however evidence before the ET that reinstatement would not be a
practical proposition as the Respondent had lost trust in the Claimant. The ET
accepted that evidence. At paragraph 81 of its original judgment the ET
accepted that the Claimant had made numerous applications for further
employment since dismissal but had been unsuccessful. The ET stated:
“He continued searching for any available job including care
work. He recognised the disclosure form militated against obtaining work in
that field. He had sought work in landscaping, joinery, process operation and
driving. At termination he earned with the respondents £362.33 gross and £284.74
net per week. He considered that if he achieved work in
landscaping/joinery/process operation he may earn approximately £100 less
per week. He had been on Job seeker’s Allowance since dismissal. He felt that
his age also was against him but with the summer coming it may be more likely
he was able to obtain some employment.”
9.
The ET noted at paragraph 96 the following submission made on
behalf of the Respondents:
“So far as mitigation was concerned it was not the respondents
who had put on the note on the disclosure form. They were legally obliged to
make a report and it was thereafter out with their hands. It was accepted that
given the terms of the report it would be difficult for the claimant to obtain
alternative employment within the care field.”
10.
There is no note in the judgment of any particular submission made by
the solicitor for the Claimant on the subject of the enhanced disclosure form.
In paragraphs 175 to 188 the ET set out its decision on remedy. It
began by noting that the Claimant sought reinstatement but as the ET found that
the Claimant had contributed to the extent of 35% to his own dismissal it
found that it would not be appropriate to make an order of reinstatement. At paragraph 183
the ET stated as follows:
“Thus the remedy is compensation. The tribunal accepted the
evidence from the claimant that he had sought to do as much as he could to
obtain alternative employment. There was no prospect of work for the claimant
in the care sector in light of the comments made on the Enhanced Disclosure
document. It seemed more likely to the tribunal that landscape work, fencing
or joinery work the likely employment (sic) for the claimant and that such work
would become more available in the summer season from May 2010. The
tribunal therefore judged that the claimant may well be able to find employment
from 1 May 2010. The tribunal did not consider that the wage payable to
the claimant at that time would be comparable to that paid to him at
termination of his employment with the respondent. They accepted his evidence
that there may be a net difference of £100 per week. So far as loss from
May 2010 was concerned given the age of the claimant it was thought that
it may take some time for him to recover to a position where he was in receipt
of earnings comparable to that earned with the respondent. The tribunal
thought that it may be that for a period of 3 years from May 2010 the
claimant would earn £100 per week less than he earned with the respondents
which would take him to age 60. The tribunal thought for a further
2 years thereafter that the difference in earning may be at the rate of £50
per week.”
11.
The Tribunal decided that it was reasonable to order a future loss up to
the age of 62. The Tribunal therefore made a basic award of nine weeks gross
pay and a compensatory award of wage loss for the period between
12 February 2009 and 1 May 2010 being a period in which they found
that the Claimant was likely to be without a wage; and thereafter a wage loss
for 3 years of £100 per week and thereafter a wage loss for
2 years of £50 per week.
12.
The ET having had its decision restored by the Court of Session was
required, as set out above, by the EAT to consider of new but on the facts
already found the issue of what compensation if any should be awarded to the Claimant.
The EAT in a supplementary judgment dated 23 April 2012 stated:
“On the findings in fact the reason why the claimant could not
obtain alternative employment in the care sector was not his dismissal but the
entry in the Disclosure Scotland records. That was a matter over which the
respondents had no control and from (sic) which they could not be held
responsible. That being so the tribunal plainly erred in their approach to
compensation. They expressly proceeded on the basis that the claimant could
not find a job in that sector because of the comments in the Disclosure
Scotland records (see paragraph 183 of their reasons) but then calculated
compensation on the basis that the claimant’s difficulty in obtaining fresh
employment was wholly attributable to his dismissal and also on the basis of
the shortfall between what he would have earned working in the care sector and
what he in fact earned when he did obtain alternative work. That was plainly
an error. They failed to have regard to their earlier finding that it was the
entry in the Disclosure Scotland records which caused the problem for the
Claimant so far as care sector work was concerned.”
13.
In its decision of the 22 January 2013 the ET quoted the judgment of the
EAT set out above and decided that it would not be appropriate to hear any
further evidence given the terms of the order. The ET reminded itself that the
case had been remitted to it to consider “of new but on the facts already
found” the issue of compensation. At paragraph 15 of its judgment the ET
noted that “the tribunal required to look at the matter afresh on the basis
that ‘if there was no entry in the claimant’s enhanced disclosure form how long
would it have taken to get work in the care sector.’ ”
14.
The ET then decided that there had been no facts found by them to the
effect that the Claimant would have got work had it not been for the enhanced
disclosure entry. They stated that the Claimant’s evidence had been that he
had searched for employment in the care sector after dismissal. He had made
application to First Home Care in June 2009. They had sought disclosure
and he then heard no more about it. He also said in evidence that when he
completed an application form and answered the common question “have you ever
been dismissed from previous employment” and responded with his position, the
application was taken no further. The ET found at paragraph 20 that there
was no evidence that it was the sight of the enhanced disclosure form which
meant that the Claimant was not employed at First Home Care. The ET stated
that the appropriate approach was for them to put themselves in the position
they were in at the original hearing and, ignoring what was said in the
enhanced disclosure form consider what were the chances of the Claimant
obtaining employment in the care sector subsequent to dismissal. The ET stated
that the approach would be on the basis of the Claimant requiring to disclose
to a prospective employer that he had been dismissed for gross misconduct
involving aggressive behaviour to a service user.
15.
At paragraph 23 the ET found the following:
“The action taken by the employer in this case was the
dismissal. In those circumstances the Tribunal would not have considered it
easy for the claimant to obtain further employment in the care sector. Any
employer would be wary of an individual making application to them who had been
summarily dismissed by a care provider for aggressive actions and abuse towards
a service user. The Tribunal were aware that the claimant had made effort to
obtain alternative employment but at the final date of that hearing had been
unable to do so. They would not have considered that fact to be unusual for an
individual dismissed by reason of gross misconduct. They would not have considered
that there must be some other reason at play, namely what was said on the
enhanced disclosure. The Tribunal considered that ignoring what was said on
enhanced disclosure there would still have been no job opportunity available
for the claimant at that time given the finding of gross misconduct by the
respondents remaining in place.”
16.
The ET went on to consider that when the original decision was issued on
27 April 2010 the Claimant would then be able to approach prospective
employers on the basis that he had been dismissed for gross misconduct but that
the Tribunal had found that the dismissal was an unfair dismissal. The
Tribunal considered that that would have an impact on prospective employers and
that the opportunities for the Claimant would be increased to the extent that
he was likely to have found employment by a care provider at approximately the
same rate of pay as he had been getting at the date of his dismissal.
17.
The Tribunal went on to make a compensatory award consisting of wage
loss between 12 February 2009 and 1 May 2010 at the full rate, and
then at a differential of £100 per week between 1 May 2010 and
27 July 2010. The basic award remained the same and the deduction for
contributory fault remained constant at 35%.
18.
Mr MacKinnon who had appeared throughout for the Respondents
submitted that the ET had not followed the order of the EAT. The Tribunal had
been told to consider the matter in light of the findings already made. It was
therefore not open to them to decide that the reason for the Claimant’s
inability to get a job in the care sector was that he had been dismissed due to
gross misconduct rather than that he had the disadvantage of the entry made in
the enhanced disclosure form. Mr MacKinnon argued that the original ET
judgment was clear that the enhanced disclosure was the problem. He argued
that it was well known that enhanced disclosure was available to a prospective
employer only if he had reason to obtain it and that he had to pay a fee for
it. Employers therefore were able to get enhanced disclosure only for people
to whom they were offering a job. Therefore First Home Care were prepared to
offer the Claimant a job until they discovered what was on the enhanced
disclosure form. Thus, he argued, as a matter of fact, it was the enhanced
disclosure form which had prevented the Claimant getting employment. In any
event, he argued that the ET had made a finding broadly to that effect in their
first judgment and that they were not in a position to review that as a result
of the order from the EAT.
19.
In his submission on disposal, Mr MacKinnon argued that the ET had
already decided the case twice and that they should not have another
opportunity so to do. His primary motion was to have the appeal allowed and
the case remitted to a freshly constituted employment tribunal. Failing that
he sought clear directions as to what the original tribunal was to do if the
case was remitted back to them.
20.
Mr Dickie, who had also appeared throughout argued that we should
refuse the appeal and adhere to the decision of the ET. He made reference to
the cases of Simrad Ltd v Scott [1997] IRLR 147, Dignity
Funerals Ltd v Bruce [2005] IRLR 189, Leonard v Strathclyde
Buses Ltd [1998] IRLR 693 and Balmoral Group
Ltd v Glenn Athol Rae ET 638/99. He referred to Employment
Rights Act 1996 (ERA) section 123:-
“… 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
insofar as that loss is attributable to action taken by the employer.”
21.
He argued that the ET had found as a fact that the Claimant had
sustained loss because he was dismissed by the Respondent. The ET should not
have findings in fact disturbed by the EAT. Mr Dickie did concede that
the judgment of the ET posed certain difficulties for him. It was not as clear
as he would have wished. He submitted however that we should not have regard
to Mr MacKinnon’s submission that the reason why the Claimant had not got
the job with First Home Care was because of the enhanced disclosure as there
was no finding to that effect. Had the Respondents wanted to lead evidence to
that effect they could have called the person from First Home Care who made the
decision to give evidence as a witness. They did not do so. Thus there was no
evidence that First Home Care were prepared to offer a job to a person
dismissed due to gross misconduct, but then changed its mind when it became
aware of the enhanced disclosure. He concluded by submitting that the decision
from the ET, while it could have been better expressed, was in essence
correct. He urged us not to interfere with that unless it was clear that an
error in law had been made and he submitted that no such error had been made.
Discussion and decision
22.
We came to the view that the ET had not adhered to the order of the EAT
when the case was remitted to it. It was at least tolerably clear from the
first judgment of the ET that the information on the enhanced disclosure form
was found by them as the reason for the Claimant not being employed by First
Home Care. In their second judgment the ET appeared to change that and to find
that it was the fact of dismissal for gross misconduct which prevented the Claimant
from getting employment. It is necessary for an ET to make findings in fact to
explain the compensatory award which they make. In this case it seemed to us
that the ET had made new findings in fact in the second judgment, which they
were specifically told not to do by the order from the EAT. We can see that
there could have been an argument that there was more than one cause of the Claimant’s
loss. We had some sympathy with Mr Dickie’s submission that no evidence was led
from the decision maker at First Home Care. These are matters, however, that
should have been raised in argument before the ET in the first hearing. The
order from the EAT was clearly to the effect that no new findings were to be
made. We have decided that the ET has in its second judgment failed to have
regard to that; it has made a decision which is different on the facts from the
first decision.
23.
We therefore allow this appeal and have decided that the appropriate
course is to remit to the same tribunal with instructions, which we trust are
clear, that they are to reconsider the remedy in light of the findings which
they made in their first judgment, in particular noting that in that judgment
at paragraphs 81 and 183 they have effectively found that the comments in
the enhanced disclosure document were the cause of the Claimant’s inability to
get work. It is not in dispute that that document was not, in this context,
something for which the Respondent had to take responsibility. Thus the ET
should reconsider compensation in light of their original findings.
24.
We regret that our decision has taken some time to come out. We also
noted that the events with which this case is concerned took place as long ago
as 2009. It is unfortunate that the matters have had to be considered by
the ET, the EAT and the Court of Session; it is especially unfortunate that
after that course of appeal, the outcome has remained uncertain. We are
conscious that the Claimant has been vindicated by the judgment of the Court of
Session in so far as his dismissal has been found to be unfair, but he has not
received any compensation. We can understand that he has found the whole
process to be baffling. We are also mindful that the Respondents have been put
to trouble and expense. We would express our hope that parties might be able
to conciliate and make arrangements to settle this matter without further
procedure.
