Appeal No. UKEAT/0435/11/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
6 February 2013
Before
THE
HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
MR I EZEKIEL
MRS L TINSLEY
HM
LAND REGISTRY APPELLANT
MRS
A McGLUE RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
SEX DISCRIMINATION
Inferring discrimination
Injury to feelings
Other losses
Woman on a career break (from which she could return at any time
on short notice) was indirectly discriminated against when her employer, which
was in need of reductions in headcount and cost, offered generous early
retirement schemes to all its staff but then decided without any notice to
eliminate from consideration those on a career break who were not due to return
before a set date, and then compounded this by telling her she was still be
considered for the scheme when she was not, and by wrongly rejecting her
grievance. At an appeal in respect of remedy, an award of £12,000 for injury
to feelings was upheld (the Claimant though a valued and long serving employee
was unhappy at work and had felt bullied), but held there was no sufficient
basis for one of £5000 in respect of aggravated damages. The Tribunal was held
entitled to award as damages the full payment she would have received if
accepted for the scheme, since the evidence was that she would have been if she
had not been excluded from consideration by the discriminatory act.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.
On 3 February 2011 Mrs McGlue succeeded before an Employment Tribunal in
Manchester, chaired by Employment Judge Brain, on her claim that she had been
unlawfully discriminated against on the grounds of her sex. Indirect
discrimination was alleged.
2.
This appeal is in respect of the subsequent remedies hearing, reasons
for which were delivered on 13 June 2011, but to understand the reasons and the
arguments on the appeal it is necessary to say a little bit about the
underlying facts.
3.
The Land Registry for whom Mrs McGlue worked as a Registration Executive
Level 2 Upper (RE2U) proposed to merge some local offices and anticipated that
it would be both necessary and beneficial in cost terms to reduce staff numbers
accordingly. The background was a need for financial stringency. The merger
scheme, which had initially been announced in December 2008, was accelerated in
the light of economic pressures.
4.
In order to encourage staff to volunteer for severance an early release
scheme was devised. Expressions of interest were required by 5 February 2009.
Mrs McGlue expressed interest. There was a particular background to this; she
was unhappy in her work for a number of separate reasons, amongst them the facts
that her relations with others had not always been congenial and she suffered
from work related upper limb disorder which affected her performance. But she
was a well thought of, long-serving employee.
5.
She had begun a period of maternity leave on 18 February 2007. As that
was drawing to its close she successfully asked for a career break beginning on
31 March 2008 and that was approved to continue for up to five years to end in
2013. The Tribunal found, importantly, that upon reasonable notice, which would
be in the nature of about a month, she could apply to return to her pre-existing
work and would be entitled to do so. When she expressed interest therefore in
the “compulsory”, as it was called, early severance scheme which would apply to
her she was on a career break.
6.
A meeting was held by three members of senior management on 25 March
2009 in order to decide who should be accepted from amongst those who had
expressed interest in severance. At that meeting the three managers decided
amongst themselves that they would introduce what the Tribunal in its merits hearing
regarded as a unilateral decision to exclude from consideration for early
release those who were on a career break and were not due to return until after
31 March 2010. The criterion was not published. It was not the subject of
consultation with employees, nor was it the subject of consultation with the
trade union despite extensive consultation with the unions previously, and the
agreement which had been sought from them to the criteria it was anticipated
would be applied at the meeting; see paragraph 126 of the merits decision.
7.
The Tribunal held that not only did the management in this way move the
goalposts, as it might be put, but they also misled Mrs McGlue in
communications which immediately followed. She was sent a letter, which we
have in a de-personalised form in our bundle though it was sent to her
personally addressed. That letter indicated that she remained eligible for the
scheme, and her application would be considered in a second round depending
upon the take up of the offers which had been made at the conclusion of the
first round of 25 March. That was misleading because given the criterion eliminating
those on a career break who were not due to return before 1 April 2010 she had
no chance of being selected.
8.
The second stage of selection took place on 16 April 2009. It was not
until 13 days later that Mrs McGlue was told of the criterion. She had been
told in a communication from her area manager on 27 March that she had not been
selected because she was on a career break, but what she had not been told was
that the criterion would have permitted her to be eligible for selection if she
had indicated an intention to return to work before 1 April 2010.
9.
She had written a letter on 8 April 2009 complaining about the selection
policy and questioning whether the approach which was indicted to those on a
career break might constitute discrimination against her on the grounds of sex
because it was far more likely, she thought, that women would be on such a
break than men and it would therefore disproportionately affect women. Despite
that, she was afforded no chance of proper consideration on 16 April 2009. She
subsequently lodged a grievance on 20 May 2009 which took some seven months
fully to resolve; first it was heard and rejected on 8 July, she appealed on 23
July, the appeal was heard on 10 September and it was finally dismissed on 31
December 2009.
10.
The Tribunal concluded that she had been indirectly discriminated against
because a provision criterion or practice had been applied to her as part of a
group which was excluded from consideration for early severance terms because
they were on a career break and had not indicated a return to work prior to 1
April 2010, and that that criterion disadvantaged her in particular. That
criterion was not justified, thought the Tribunal, by the Land Registry’s aim
of achieving costs savings and head count reductions necessary in the serious
financial circumstances which pertained.
11.
The case was heard together with the case of five other Claimants who
complained not about sex discrimination, but about the fact that the operation
of the compulsory early retirement scheme, disadvantaged them because of their
age. The Tribunal in its merits decision found in their favour too, but the
case went to appeal.
12.
The Employment Appeal Tribunal, presided over by Underhill J as
President, in a decision handed down on 10 February 2012, allowed the appeal of
the Land Registry against the five Claimants who alleged age discrimination.
It dismissed their appeal against the decision in respect of Mrs McGlue. In
the interim, there had been a remedies hearing, as we have indicated, but
because by then the result of the appeal had not been known the hearing
involved the five Claimants who ultimately failed as well as the Respondent to
the appeal before us today, Mrs McGlue.
13.
The conclusion which the Tribunal came to at the remedies hearing was
that so far as Mrs McGlue was concerned she would be entitled to an award of
compensation for injury to feelings of £12,000, an aggravated award of a
further £5,000 and a compensatory award of £71,710.95. The basis for that
figure was that it was the sum she would have received had she been able to
apply for voluntary severance, because the evidence which the Tribunal accepted
was that if she had returned to work or intimated an intention to do so prior
to 31 March 2010 [the Tribunal said 2009 but that is probably a misprint] she
would have been included in the scheme and successful upon costs grounds;
paragraph 174 of the merits decision. Although a point was taken by Ms Wheeler
that this tied the grounds to costs grounds, which were not the only grounds
which were applicable and, therefore, it could not be known for sure that that
Tribunal was finding that she would have been accepted for voluntary severance,
the Tribunal subsequently and clearly stated that she would have been accepted;
see paragraph 102 of the remedies hearing,
“But for the application of the discriminatory provision,
criterion or practice, Mrs McGlue would have been one of those selected to
leave under the merging offices scheme … We find, therefore that but for the
indirect sex discrimination she would have been released under the merging
offices scheme. Accordingly, Mrs McGlue is awarded financial compensation in
the sum of £71,710.95 being the amount that she would have been paid upon
release.”
The appeal
14.
Four grounds are raised on appeal. The first was whether the indirect
discrimination could properly be held intentional as the Tribunal said it to
be. The reason underlying this ground is that the Sex Discrimination Act
1975, which was the applicable legislation so far as this claim was
concerned, provides by section 65 what the remedies on a complaint under
section 63 shall be. It provides as follows, so far as material:
“(1) Where an Employment Tribunal finds that a
complaint presented to it under section 63 is well founded the Tribunal make
such of the following as it considers just and equitable;
(a) an order declaring the rights of
the Complainant and the Respondent in relation to the act to which the
complaint relates.
(b) an order requiring the Respondent
to pay to the Complainant compensation of an amount corresponding to any
damages it could have been ordered by a County Court … to pay to the
Complainant if the complaint had fallen to be dealt with under section 66.
(c) a recommendation that the
Respondent take within a specified period action appearing to the Tribunal to
be practicable for the purpose of obviating or reducing the adverse effect on
the Complainant of any act of discrimination to which the complaint relates.
(1B) As respects, an unlawful act of discrimination falling
section 1(2)(b) [we interpose to say that would apply here]…if the Respondent
proves that the provision, criterion or practice in question was not applied
with the intention of treating the Complainant unfavourably on the ground of
his sex…an order may be made under subsection (1)(b) only if the Employment
Tribunal –
(a) makes such order under subsection
(1)(a) and such recommendation under (1)(c) (if any) as it would have made if
it had had no power to make an order under subsection (1)(b); and
(b) (where it makes an order under
subsection (1)(a) or a recommendation under subsection (1)(c) or both)
considers that it is just and equitable to make an order under subsection (1)(b)
as well.”
15.
There are thus two routes to compensation: where there is the intention
referred to in the subsection, or where the Tribunal in the circumstances
described consider it just and equitable to award compensation. Ground 1 was
an attack upon the first of those routes. It was well developed by Ms Wheeler
in an attractive argument but ultimately the question arose whether we needed
to determine it for the purposes of this appeal. The Tribunal having decided
that the employer did “intend” in the sense permitted by the cases, it then
said this at paragraph 74:
“However, even if the Tribunal were to be wrong to have found
that the indirect age and sex discrimination was unintentional, we would have
held that it is just and equitable to award compensation in any event.”
16.
There has been no appeal against that secondary conclusion. Therefore
the effect of arguing intention would not be to eliminate any compensation
whatsoever. Compensation would still be awarded under the alternative approach
set out in paragraph 74. Ms Wheeler accepted that she might be in some
difficulty without seeking to amend to argue that this finding too was wrong. In
the event she did not and it seemed therefore to us that the relevance, if any,
of the intention which the Tribunal found would be whether it coloured its
decision in respect of the matters to which we now turn: its awards in respect
of injury to feelings, aggravated damages and compensatory award. We note,
however, that at no point in her argument did we detect that Ms Wheeler
specifically linked the finding of the Tribunal as to intention made at this
part of its decision to its actual conclusions in respect of those matters. We
therefore do not, despite her attractive invitation, think it necessary to
resolve the issue to which she has referred. It was, we consider, arguable.
17.
Ground two was simply put that the award for injury to feelings was too
high. Three bands of suggested compensation were set out in Vento v
Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102. They
were revised with effect from the end of 2009 in Da’Bell v NSPCC
[2010] IRLR 19. The lower band goes from nothing to £6,000, the middle band
from £6,000 to £18,000 and the highest band is not material for our present
consideration.
18.
That being some four years ago now, the mid-point of the middle range
would be a little over £12,000 if allowance were made for inflation.
Therefore, the Tribunal’s award came in at or about the middle, but, if
anything, a little bit lower than the middle of the middle band. Whilst
accepting that this Tribunal would not interfere with any award in respect of
compensation for injury to feelings unless the award made was manifestly
excessive or wrong in principle, Ms Wheeler suggests that the appropriate band
was the lower band and that therefore this award was simply too high. The
factors she relies upon for that submission are that the Tribunal put matters
too high when they dealt with the facts at paragraph 103 and following in the remedy
judgment. In paragraph 103 the Tribunal noted that the Land Registry were
arguing that the award should be within the lower band. It rejected that
submission because that was, “appropriate for less serious cases such as where
the act of discrimination is an isolated or one-off occurrence.” It commented:
“The Respondents’ conduct spanned a nine month period between
March and December 2009 during which there were two selection exercises, a
reply to an age discrimination questionnaire, the rejection of a grievance and
the rejection of an appeal against the grievance decision.”
19.
That was in respect of the age claimants. But when the Tribunal turned
to deal with Mrs McGlue, it noted at paragraph 127 “That for very similar
reasons to those of those Claimants, we award her…” and it happened to be the
same sum. At paragraph 124 it said as follows in respect of her alone, not
linking her here specifically with the age claimants:
“124. The injury to her feelings is well described in her
witness statement. She fairly accepted in cross-examination, however, that
there were a number of features that contributed to her unhappiness including
the history of bullying and harassment of her and the work related upper limb
disorder. However, the Respondent must take Mrs McGlue as they find her. They
are therefore liable for the full extent of any injury so long as that can be
shown to be attributable too and caused by the act of discrimination. The
injury to her feelings as she describes them is similar in many respects to
those of the Claimants including her acute sense of disappointment, the failure
of the Respondent to heed her letter of 8th April 2009 in which she
said that the scheme was indirectly discriminatory upon the grounds of sex, and
the failure to act upon that or correct it at any stage. Her sense of injury
to feelings also encompasses that flowing from the application of the relevant
PCP and her ignorance of it until she saw the “Frequently Asked Questions”
document; paragraph 30 of her witness statement.
125. The Tribunal found that the decision to
exclude Mrs McGlue was taken unilaterally by the decision makers at the meeting
of 25th March 2009. We also rejected the Respondents case that Mrs
McGlue “was still in the pot” and accepted Mrs McGlue’s case that the letter
sent to her at page 101 of the merits hearing bundle was misleading.
126. The Respondent misleading Mrs McGlue significantly
adds to her injury to feelings. Further it merits, in addition, an award of
aggravated damages. As well as that particular feature of Mrs McGlue’s case we
also have regard to her sense of aggravation caused by the promotion of Mr
Evans [we interpose to note that he was one of
the three involved in the meeting of 25th March] the absence
of any apology and the high-handed conduct by the Respondent of the merging
offices scheme.”
20.
Ms Wheeler complained first that the approach which the Tribunal took was
coloured by the Employment Tribunal’s general view that discrimination was so
serious that it had be eliminated by virtually any means possible, including in
this case spending a very considerable sum of money in order to release all
staff. The Employment Appeal Tribunal specifically did not endorse that
approach. Accordingly we shall read the Tribunal’s decisions as qualified to
the extent appropriate by the Appeal Tribunal’s approach, which (paraphrasing
her argument) was less indignant about the way in which the employer had
behaved than the Employment Tribunal might be thought to have been.
21.
She pointed out that those who had been affected by the loss of the
opportunity to take advantage of the early release schemes did not lose their
jobs, nor did they lose a benefit which they had any positive expectation of
receiving. Rather they lost out on the chance to take advantage of a benefit,
admittedly a very substantial one, on which they had no right to count and
which could indeed be described as a windfall. Those words, taken from the
Appeal Tribunal Judgment, were words which she urged upon us as the context
within which this award had to be made. She noted that there was in much in
the statement of Mrs McGlue upon which the Tribunal had relied which related to
historical and early problems which she had had in her work at the Land
Registry which had not been caused at all by the act of discrimination
complained of. She reminded us that it is important to focus upon that act.
The Tribunal had compensated her for much of her longstanding sense of
grievance about her employment, rather than for the act of discrimination upon
which there should have been a focus. Moreover, the act was an act which was
confined to March yet the Tribunal had approached it as it were a continuing
act over nine months.
22.
She argued too that there was a degree of overlap between the award in
respect of injury to feelings and the compensatory sum in respect of aggravated
damages; an argument to which we shall return. Amongst the submissions she
made was that the Tribunal had taken a figure of £12,000 for each of the age
Claimants and adopted precisely the same figure for Mrs McGlue. This one size
fits all approach might be thought to indicate that the Tribunal had not approached
the injury to feelings upon the personal basis on which it is necessary to
approach it.
23.
In response, Mr Apthorp emphasised that this award was not one which
could properly be attacked. It is justified being within the second band of Vento,
it could not be said to be wrong in principle and what it covered was the
distress of someone who against the background of earlier unhappiness in work
would have taken the advantage of the severance scheme in order to secure her
release. She was denied that opportunity by, effectively, a changing of the
goalposts at the last minute, but more important something which was not
notified to her; it could have been but it was not. She was wrongly assured
that she was, “Still in the pot” when that was untrue. To one who had served
her employers for several years as a loyal employee, that was undoubtedly
wounding. To make matters worse, argued Mr Apthorp, when she complained that
there might be discrimination that complaint was rejected. The process of the
grievance and the appeal hearing would have been unnecessary if there had been
no discrimination. That extended over some months.
24.
He argued therefore that given the particular nature of the Claimant and
given the great impact which the discrimination of the Respondent had upon her it
would be wrong to place this case in the lower Vento band.
Discussion
25.
As a matter of principle awards made by a Tribunal in respect of injury
to feelings are not susceptible of close calculation. That is why they will
not be interfered with unless they are manifestly excessive or wrong in principle.
The making of an award at all was plainly not wrong in principle given the
Tribunal’s conclusion at paragraph 74 to which we have already referred. We
note here this is not simply a case of indirect discrimination, but a case in
which the employer had the opportunity, if it had wished, to identify the
criterion it did apply earlier than it did, when it misled Mrs McGlue, and when
the effect of the conduct was to deny her the opportunity to obtain a very large
benefit for her making her able financially to obtain release from her
employment. That is something which for her was of particular importance - as
evidenced by the content of her witness statement which we have looked at with
some care.
26.
It is true that most cases that we have to consider involve the loss of
a job as a detriment rather than, as has been observed in this case, remaining
in a job being something of a disadvantage compared to what was on offer. But
that is beside the point here. We must recognise that the Tribunal here had an
opportunity which we do not have on review as an Appellate Court: it saw and it
heard the Claimant. In any case involving injury to feelings, the Tribunal
using its experience must assess the effect upon the individual. That involves
understanding and evaluating what truly is the subjective effect of what
objectively is discrimination. It means that a considerable margin must be recognised
around any award which is made.
27.
We are concerned in this case that there may have been an element of
double counting by taking into account the misleading of Mrs McGlue not only in
respect of the award for injury to feelings as such, but also in calculating the
award of aggravated damages. But we do not think that the appropriate way to
recognise that is to reduce the award which was made under this head: we shall
return to the point later.
28.
We have been shown, and taken to, a number of examples by Miss Wheeler
by reference to those cases set out for comparison in Harveys. A difficulty
with being guided too tightly by comparable cases is first of all the brevity
of any report, and secondly the difficulty of knowing precisely how the
discrimination set out in each report actually affected the individual in
respect of which the judgment of the Tribunal comes into play. They do not
clearly demonstrate that the Tribunal adopted the wrong bracket.
29.
Taking those matters into account, we have concluded that this award is not
one which we could properly interfere with. We therefore dismiss the appeal
against it.
Aggravated damages
30.
As will be seen, we take a rather different view when we come to the
question of aggravated damages.
31.
Ms Wheeler in her skeleton argument set out the circumstances in which
the case law has established that such damages may be awarded. Mr Apthorp does
not query this categorisation. First is the manner in which the wrong was
committed. The distress caused by an act of discrimination may be made worse (a)
by being done in an exceptionally upsetting way, e.g, “In a high-handed,
malicious, insulting or oppressive way” per Lord Reid in Broome v Cassell
[1972]; (b) by motive: conduct based on prejudice, animosity, spite or
vindictiveness is likely to cause more distress provided the claimant is aware
of the motive; (c) by subsequent conduct: for example where a case is conducted
at a trial in an unnecessarily offensive manner, or a serious complaint is not
taken seriously, or there has been a failure to apologise, e.g. Prison
Service v Johnson, HM Prison Service v Salmon [2001] IRLR 425 and British Telecommunications v Reid [2004] IRLR 327.
32.
The facts of the latter case are illustrative. It was a decision of the
Court of Appeal. Mr Reid was a black man of Afro-Caribbean descent. He worked
with two others. One adopted a threatening manner and spoke to him in abusive
and plainly racist terms. Accordingly, Mr Reid left the building and did not return
to work. That resulted in disciplinary proceedings being brought against him. He
brought an internal grievance against the co-worker who had spoken to him in
the terms we have described. The disciplinary case was not upheld, but nor was
the grievance, and Mr Edwards and the other co-worker concerned were both
promoted to new posts which made them senior to Mr Reid. Thus in that case he
had to suffer the indignity of a disciplinary investigation which was totally
unjustified, and had the aggravation of seeing those who were actually the
villains of the piece not being punished or disciplined but instead promoted
without any apology on behalf of the employer.
33.
We are invited to say that the facts of this present case do not meet
the circumstances which are set out in any of the three categories. It is
common ground that the second does not and cannot apply. It is common ground
that the manner in which the case was conducted at trial here was not
unnecessarily offensive. It was said that a serious complaint had not been
taken seriously and that there had been a failure to apologise. It was
accepted that the manner in which the wrong was committed was not malicious nor
oppressive, but it might be said to be high-handed or insulting.
34.
The Tribunal did not make an objective finding in respect of this part
of its award at paragraph 126. It had regard to the sense of aggravation which
Mrs McGlue was caused by the promotion of Mr Evans, the absence of any apology
and the high-handed conduct by the Respondent of the merging offices scheme.
35.
A Tribunal in examining whether there is a case for aggravated damages
has to look first as to whether objectively viewed the conduct is capable of
being aggravating, that is aggravating the sense of injustice which the
individual feels and injuring their feelings still further. The three
categories which are set out by Ms Wheeler all give examples rather than an
exhaustive list of the behaviour which will qualify under each head. We note however
that the emphasis is one of degree. Thus under (a) the word ‘exceptionally’ is
used to qualify the word ‘upsetting’. The expression ‘high-handed’ and
‘insulting’ occurs in a general phrase involving four words, all of which
characterise the phrase, including “malicious” and “oppressive”. Aggravated
damages certainly have a proper place and role to fill, but a Tribunal should
also be aware and be cautious not to award under the heading “Injury to
Feelings” damages for the self same conduct as it then compensates under the
heading of “Aggravated Damages” It must be recognised that aggravated damages
are not punitive and therefore do not depend upon any sense of outrage by a
Tribunal as to the conduct which has occurred.
36.
Mr Apthorpe argued that what had happened here was that the employer had
deliberately mislead the Claimant, because if she had been told the full
criterion she and those others (there were eight others) might then have
exercised their right to return to work on reasonable notice and therefore
qualified for scheme, and it would have opened the floodgates to these
additional employees. It was that element, he submitted, that led to
aggravated damages. The employer effectively had lied to the employee for its
own convenience.
37.
Ms Wheeler in reply effectively pointed out to us that the Tribunal did
not find that this was deliberate conduct in that sense, nor did it make any
finding that the employer had actually lied. If it had then we would have
thought aggravated damages would be justified, but it did not. As to the
high-handed conduct of the merging offices scheme, this was understood by Mr
Apthorp to be a reference to the employer appearing to participate in bona fide
negotiation with trade unions on behalf of the affected employees, having
published criteria and agreed those criteria with the trade union, only
covertly to determine upon an additional criterion of its own. This was a
gross breach of good faith as he suggested
38.
The points made have to this extent some support from the lay members in
particular of this Tribunal; one of whom has particular experience of the
management of change and the need in situations of wholesale change in
employment to ensure that staff remain informed and who would emphasise in
addition that in the process of the grievance and disciplinary proceedings here,
what was also an issue was the failure of the employer here to honour properly
the Keep in Touch Scheme which it is necessary to observe for those employees
who, because they are on a career break, are somewhat disconnected from day to
day events in the work place.
39.
All that said, our collective view is that there is insufficient here to
meet the hurdle that must be met before aggravated damages can properly be
awarded. It is wrong in principle. Further, we consider that if one stood
back from the total award for compensation and looked at the sum of £17,000 in
total that might indicate that there was here a sum which was too high for what
was described by the Tribunal. We think it reached not in any sense by an
error in respect of the award for injury to feelings as such, but because here
the Tribunal determined upon an award of aggravated damages for which there was
no sufficient basis.
40.
For those reasons we allow the appeal so far as it relates to the award
of aggravated damages.
Compensatory award
41.
Ms Wheeler argues that the sum of £71,710.95 was a redundancy payment.
Such a payment is intended to compensate an employee for the loss of a job.
Here, however, the employee remained in work doing the same job. The whole
basis therefore for such a payment was undermined. The result, she argues, is
that the sum should be assessed at nil. Secondly, she argues that if that be
wrong, by staying in employment, the Claimant received earnings which if had
she accepted the severance payment she would not have had. Between May 2009
and 30 April 2011 she received, on her calculation, £13,984.25. Her expected
gross earnings to retirement would be over £100,000, to be followed by the
payment of pension. Accordingly, she argues, the Claimant could not be said to
have lost anything.
42.
We do not accept these submissions. The principle which is to be
adopted is that the victim of a wrong is to be placed financially in the
position in which she would have been had the wrong not been committed, so
nearly as possible as money will do it. If the wrong here had not been committed
she would have been eligible for the Early Severance Scheme. On the findings
of fact to which we have already referred, she would have been selected. Her
case was that she would have accepted the offer and it was not challenged in
this respect. She would therefore have been £71,000 better off. That
therefore is the starting point. The argument that such a payment is intended
for loss of a job is beside the point. A payment in return for giving up a job
would be a better way of describing it in the present case, but it would not
have the effect if accepted that the Claimant would necessarily be without work
and income. She said in her witness statement at paragraph 53 that she:
“Would have received a compensation package and then found
part-time work elsewhere, working similar hours to work I am presently
performing for the Respondent. The earnings I receive are similar to those I
would have earned elsewhere.”
43.
She works 16 hours per week; hours which may well be moderated by her
physical condition. Her rate of pay is annualised at full-time basis just
short of £13,000 per year.
44.
If it was established before the Tribunal that she would earn less in
other work than she would for the Land Registry then to the extent that there
was a difference, it would be capable of being offset against the benefit which
the Claimant would have had by accepting the severance payment.
45.
The difficulty for Ms Wheeler’s argument is that the Tribunal made no
findings of fact about this at all. A similar point arose to which she does
draw attention in respect of the five claimants who claimed age
discrimination. At paragraph 100 the Tribunal said this:
“No award is made to any of the Claimants for loss of earnings
from the date upon which they would have left the Respondents’ employ but for
the age discrimination. We agree with the Respondents’ submission that there
is no loss as the Claimants have not made out their case that they would have
achieved alternative employment making up the difference between their salaries
on the one hand and their annual pension income on the other. In reality, the
Claimants did little more than simply assert a confidence that they would have
achieved employment paying in excess of the difference. Those assertions were
not backed up with any adequate evidence which satisfies the Tribunal that they
have suffered a financial loss.”
46.
Mr Apthorp rightly points out that this paragraph is in relation to
those claimants alone and does not deal with the particular position of Mrs
McGlue. It is also clear to us that they were the claimants who argued that
they had suffered a continuing loss of earnings. This paragraph must therefore
be seen in that context. Mrs McGlue made no such claim.
47.
Next, the claim that was made was that they would have had more money in
their pocket than they currently do because they would achieved employment at a
salary which exceeded the amount of money they now get; see the third last
sentence in the paragraph. These observations therefore are dealing with a
very different case from that of the Claimant.
48.
Ms Wheeler tells us that she was satisfied that she cross-examined each
of the claimants about their contention as to alternative work. This is
disputed on behalf of Mrs McGlue. Though given the opportunity to do so, Ms
Wheeler has not pointed us in the end to any matter upon which we can rely,
beyond general assertion, which shows that there was a challenge put to Mrs
McGlue about what was undoubtedly her evidence (at paragraph 53 of her witness
statement) that, if she had accepted the severance payment, she would have had
no different an income from employment than she would by retaining her 16 hours
per week at the Land Registry.
49.
The Tribunal made no particular findings upon these points. It seems to
us that the resolution of them is simply this. Implicit in the Tribunal’s
finding about the award of the £71,000 was a finding that there was no loss to
be offset against it, because if she had been out of the employment of Land
Registry employment she would have been eligible to take employment elsewhere
should she have wished to do so. It follows that there is no sufficient basis
here on appeal for seeking to offset against the prima facie sum of £71,710.95
any supposed financial benefit that the Claimant would have had by remaining
with the Land Registry.
50.
Accordingly we reject this fourth ground of appeal.
Conclusion
51.
In conclusion, this appeal fails upon all the grounds which have been
advanced to us save one. We allow the appeal in respect of the award of
aggravated damages. We therefore adjust the total award which has been made by
£5,000 downward together with any consequent amendments that must be made to
the sums in respect of interest.
52.
Finally, we should thank in particular Ms Wheeler for the clarity of her
argument explaining complex factual circumstances with economy and style.
