Dundee City Council v Malcolm (Sex Discrimination: Other losses) [2016] UKEAT 0021_15

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

1. There are three appeals before me (two brought by Dundee City Council (“Dundee”), the other by Ms Malcolm) against decisions of Employment Judge Watt, Mr Spinks and Mr McCrory sitting together at Dundee. The first two are in respect of their decision of 12^th January 2015, by which the Claimant was awarded £17,946.96 as compensation for loss of earnings –Dundee appeal on the ground that the Tribunal did not have any proper basis in either evidence or submission for making such an award, and Ms Malcolm appeals on the basis that it did not adequately compensate her for her loss. The third is an appeal by Dundee alone against a subsequent decision of 23^rd March 2015, at which the Tribunal ordered that there should be a hearing to take further evidence as to the Claimant’s loss of earnings. As it happens, on the basis of the evidence then led as well as earlier evidence, the Tribunal went on at a subsequent hearing in May to confirm its decision of January. No appeal is brought directly against that decision, but it would fall if the third appeal succeeds, since a consequence would be that the Tribunal should not have considered any new evidence at the hearing, as it did.

The Background

2. Ms Malcolm worked for 16 years as a Lab Technician in the employment of Tayside Regional Council. Performance issues arose. As a consequence, she was offered and accepted demotion to a post as a General Assistant at Baldragon Academy, doing some of the work of a Lab Technician together with other work generally to assist teaching at the Academy. She resigned in November 2002. She had never been unemployed since first starting work in 1976. She claimed constructive dismissal and that she had been the victim of sexual harassment at work.

3. After a tortuous earlier passage of her claim through the courts, it was finally established, as late as 2012, that in 2001 Dundee Council was liable for discrimination against Ms Malcolm. She suffered a nervous breakdown as a result of the harassment, and was entitled to compensation for psychiatric injury, injury to feelings, and loss of her earnings. Remedy had then to be determined.

4. A first decision as to remedy was successfully appealed to the Appeal Tribunal. Giving the judgment of the EAT, Lady Stacey concluded that the Claimant had shown that she had a medical condition which prevented her working between 2002 and 2007, and was entitled to wage loss for that period. At paragraph 24 of her judgment, she said:

“…it follows that what the ET has to assess is what would have happened if the events of 2001 had never happened. On the Claimant’s own evidence, she would not have gone to university. She had resigned from her job. It would be for the ET to decide if she would have got another job, if so, when, and at what salary.”

She rejected a claim for future loss after 2013. She remitted the case to the Employment Tribunal to determine pension loss, and the figures to be used to calculate wage loss, adding:

“The ET will have to determine what work the Claimant would have done after her resignation in 2002 had she been fit; what wages she would have made; and what loss she sustained.”

Finally, at paragraphs 28 and 29 summing up her decision, Lady Stacey added:-

“…with a view to finality, I will direct that the ET should hear such evidence and submissions as the parties choose to lead and make on the part of the case relating to the amount of wage and pension loss only.

29. My disposal therefore is to return this case to the Employment Tribunal to decide on the correct amount of compensation on the basis that the Claimant was unable to work between 2002 and 2013 due to the acts of the Respondent’s employees; the ET must make findings of fact on the work that the Claimant would otherwise have done and the salary she would have been paid; on whether that work would have been pensionable; and calculate the loss she has suffered.”

5. That decision was promulgated on 5^th September 2014.

The Tribunal Decision of January 2015

6. At a preliminary hearing in advance of the remitted hearing, Employment Judge Watt emphasised to the Claimant and her representative (her brother) that the burden of proof lay upon her to satisfy the Tribunal of “the likelihood of the Claimant’s loss” and that there must be “…enough evidence for the Tribunal to be satisfied what work it was likely the Claimant could have done after her resignation, what wages she would have earned and what loss she sustained.” The Tribunal approached the remitted hearing on this basis.

7. The Tribunal recorded her as giving evidence which she contends is sufficient for this purpose, and which Dundee argues is not. This was evidence of her skills, her past employment history, and the aspirations she would have had for future employment had she been fit. The detail is set out at paragraph 23 of the decision: but the salient features are that, so far as skills are concerned, she was well qualified (she had 9 ‘O’ Grades and 5 Highers on leaving school, an HNC in Biology acquired later, and, I should add, the Tribunal must also have known that since dismissal she had confirmed her academic potential by studying for and obtaining an MSc). She had a record of considerable in-service training. She considered she also had skills with people, enthusiasm, and a love of working with the young. The salient features of her work history are that in just over 29 years since leaving school she had never been unemployed, and she had had 22 years or so of experience as a Lab Technician. She also worked on the check-out at an ASDA store, in which she had been working part-time for two years before her resignation from her Lab Technician post. She worked 15.5 hours per week there, in addition to her full-time post. As to her aspirations, had she not suffered from her nervous break-down, she thought she would have been successful in obtaining a job as a Lab Technician with Dundee University, though if it had been necessary she would have applied for positions in a Bio-Tech company. Her basis for arguing that she would have been engaged as a Lab Technician by the University of Dundee was not just her background as a Lab Technician in education, but also the fact that she had worked voluntarily in such a role whilst she had been an undergraduate following her resignation and whilst following post-graduate studies thereafter.

8. As against these considerations, it was in evidence that the Claimant had accepted demotion as an alternative to dismissal because of her failure to achieve and sustain significant improvement in her work performance as a Lab Technician in the mid 1990s. The Tribunal thought that she would not have obtained a good reference because at the time of her resignation her employer had been concerned that she was off sick from her work at Baldragon Academy, yet was working at the same time in her part-time ASDA job. The Academy had told her not to continue to work at ASDA, but she had disregarded that instruction.

9. The Tribunal concluded that there was no evidence to establish that there were any vacancies for a Lab technician post at the University. It accepted Dundee’s criticism that her evidence amounted to “no more than the Claimant stating that she would have liked to have worked in the laboratories at Dundee University.” Nor did it have any evidence of the state of the job market for Lab Technicians in Dundee more generally. It commented (paragraph 72) “As regards any other jobs the evidence of the Claimant was sketchy in the extreme.” There was, for example, no evidence that there were any vacancies with Bio-Tech companies in Dundee during the relevant period, nor evidence as to their likely pay rates.

10. Having, on this basis, dismissed the likelihood of the Claimant being employed as a Lab Technician, it turned to consider the Claimant’s claim for loss of her earnings from ASDA which she argued would have continued at least at the part-time level it had whilst (on her case) she worked during the week as a Lab Technician. At paragraph 100 the Tribunal said this:-

“The Tribunal heard, at the original referral hearing, in this case, that full-time hours for an ASDA Check-Out operator are 36.5 hours. The Tribunal consider that it is more likely than not that, if Ms Malcolm had not obtained a position as a Lab Technician by 2005, she would have been looking to go full-time as a Check-Out operator in ASDA in order to try to meet her mortgage and other out-goings. The Tribunal consider that it is probable that a full-time position would have arisen by 25 November 2005. If the Claimant could have got nothing else, the Tribunal are satisfied she would have taken a full-time job at ASDA.”

This conclusion was reached because the Tribunal declared itself satisfied (paragraph 27) that if she had not obtained a position as a Lab Technician by the middle of 2005 she would have been considering other options; and (at paragraph 98) that she had always worked since she had left school, had a mortgage to pay and “the normal bills that everyone has to pay”, and (paragraph 99) had worked in ASDA part-time for about 5 years by 2005 without having any problems there. It considered it “likely that vacancies for full-time check-out operators as ASDA stores occur on a fairly regular basis.”

11. The Tribunal rejected the claim for pension loss.

Subsequent History

12. By a Notice of Appeal of 17 February 2015, Dundee argued that the Tribunal erred in law in awarding the Claimant compensation on the basis of the likelihood of her being employed full-time by ASDA, since that compensation was not claimed by the Claimant, there was no evidence that ASDA had a vacancy, or that the Claimant would actually have sought such a position, and the award was expressly recognised by the Tribunal itself to be speculative. Since the Respondent had not been invited to argue whether the Claimant would have enjoyed such a job with ASDA it had been deprived of any opportunity of testing the hypothesis upon which the Tribunal based its decision or of leading any contrary evidence. The Tribunal was making a case of its own motion which the Claimant had not made.

13. By her own Notice of Appeal six days later, Ms Malcolm complained that the Tribunal had rejected her case that she would have obtained a Lab Technician’s job: it was not rational to ask or seek evidence as to what would happen in the future when that was unknown, and the Tribunal had not approached matters as would a court considering a personal injury or discrimination case.

14. Both parties applied for reconsideration of the judgment. At a hearing on 13^th March 2015 to decide if it would conduct a reconsideration, the Tribunal rejected the Claimant’s application, but accepted Dundee’s point that Dundee had not had the opportunity to cross-examine the Claimant on a postulated loss of earnings based upon a full-time job at ASDA, nor to make submissions on the point, since the Claimant had not “…put forward this claim”. It decided that it would “…proceed to hear evidence of submissions to decide whether the judgment should be revoked, varied or confirmed.”

15. Dundee took issue with this latter direction in its third Notice of Appeal. It argued that in effect the Tribunal had accepted that the Claimant had not claimed compensation for loss of a job at ASDA full-time, and that there was no evidence directly to prove that ASDA would have had such a vacancy or that the Claimant would have sought or been given such a job. In the absence of her advancing such evidence and making such a claim she should not have succeeded: and accordingly it was perverse to reconsider the decision by permitting her to bring forward evidence which she could have advanced at the hearing leading to the January judgment, but did not. Moreover, the Claimant did not move the Tribunal to give her any such further hearing. It was not the function of the Tribunal to be inquisitorial or proactive so as to make a claim for a party which the party herself was not making. To permit such evidence to be advanced at a late stage, after many previous hearings, was to deny the principle of finality of its proper effect. It was not the function of a reconsideration hearing to give a party the opportunity to advance an argument when that party had already had such an opportunity but had not used it.

16. In the event, the Tribunal heard evidence from Ms Malcolm. It did not simply have her be tendered for cross-examination, but allowed her to lead evidence. Dundee called no evidence of its own. Both parties made submissions. Dundee thus was given the right it had claimed to challenge Ms Malcolm on the issue, the opportunity to call evidence of its own, and to make submissions about the issue: but maintains before me that Ms Malcolm should not have been allowed to give evidence in support of the point.

Discussion

17. Certain principles of law are clear. One of them (often referred to as the “principle in Ladd v Marshall) is that a party should bring all the evidence upon which that party wishes to rely to the court for the hearing at which it will be considered. In the absence of exceptional circumstances (where evidence was not known of at the time of the hearing, is credible, and might have made a difference, or where there is some reasonable and compelling explanation for it not having been advanced) it is simply too late to produce evidence after a case has been decided. As Sir John Donaldson said in Bagga v Heavy Electricals (India) Ltd [1972] ICR118, at 120:-

“Parties must not think that they can prosecute a case in front of the Tribunal, appeal and come to this court, producing additional evidence which they could have placed in front of the Tribunal, and then expect this court to allow them to re-open the case and add to the evidence. The rules applied by the courts are clear. Such evidence will be admitted only if some reasonable explanation can be produced for its not having been put before the Tribunal of first instance and if new evidence is credible, and if it would or might have had a decisive effect upon the decision.”

The principle, which applies to courts, applies with equal force to tribunals, even though a tribunal is more informal, can regulate its own procedure within limits, and has a particular responsibility to ensure that its proceedings are accessible to an unrepresented party.

18. A second principle is that it is not for a tribunal to make a case for a litigant. However much a tribunal feels that a litigant is not making the best case that litigant could, given the facts as they appear to the tribunal, it cannot step into the shoes of the litigant and make for itself any case which it appears could have been advanced successfully in the light of that material. To do so would be to enter the arena. It would be to abandon impartiality. It would run counter to the very essence of the accusatorial procedure. Although litigants who are not lawyers might not know what precise legal label might categorise their cases, they will know what it is that they are complaining about. The line between making a case which is not being advanced by a party, on the one hand, and helping that party to articulate clearly that which they are complaining about on the other may be fine, but it is critical. A tribunal’s duty to be fair to both sides means it cannot enter the contest on behalf of either one. It must listen to the cases made for each, and must not substitute a case of its own. As Lord Justice Mummery said at paragraph 26 in MacNicol v Balfour Beatty Maintenance Ltd [2002] EWCA Civ 1074 (a case in which what was in issue was whether the Claimant had suffered an impairment which could begin to satisfy the statutory definition of disability) the role of the tribunal

“…is to adjudicate on disputes between the parties on issues on fact and law. I agree with the guidance recently given by Lindsay J in Morgan v Staffordshire University [2002] ICR 475, 483, para 20. The onus is on the applicant to prove the impairment on the conventional balance of probabilities. In many cases there will be no issue about impairment. If there is an issue on impairment, evidence will be needed to prove impairment. Some will be difficult borderline cases. It is not, however, the duty of the tribunal to obtain evidence or to ensure that adequate medical evidence is obtained by the parties. That is a matter for the parties and their advisors. Sensible and sensitive use of the Tribunal’s flexible and informal procedures and its case management powers enable it to do justice on this issue by reminding the parties at the directions hearing of the need in most cases of qualified and informed medical evidence, bearing in mind that an unrepresented person may need some explanation about what is involved and what is required and also bearing in mind the cost of obtaining such evidence, the need to keep costs down and the limited resources available to many parties in the Employment Tribunal”.

Although that itself case concerned the proof of impairment in a case of alleged discrimination on the ground of disability, in saying what he did Mummery LJ was rejecting an argument that there should be a special role for tribunals in such cases. The principles underlying his comments are, therefore, applicable to cases in other areas of employment law such as the present.

19. I therefore accept that these two principles underpin a third upon which Mr Upton relies in his submissions on behalf of Dundee in respect of the appeal of the decision of March 2015. That is that in general a tribunal ought not to order reconsideration if the purpose in doing so is to permit further evidence to be led by a party which could have been led earlier, and which would not be admitted if the rule in Ladd v Marshall (the principles of which are expressed above) were applied. This principle is clear from a number of authorities. In Flint v Eastern Electricity Board 1975 ICR 395 Philips J declared that it was in the public interest that proceedings should be as final as possible, and that it should only be in unusual cases that an applicant before a tribunal was able to have a second bite at the cherry: thus, where information which a party wished to put before a tribunal at a second hearing had been in both the applicant’s possession and in his mind during the whole time of the first hearing a review of the decision reached at that hearing (as reconsideration was then termed) should not be held. The same point was emphasised in Mensah v East Hertfordshire NHS Trust [1998] IRLR 531, CA in which at paragraph 18 Peter Gibson LJ cited with approval the words of Sir Hugh Griffiths giving the judgment of the court in Craig v British Railways (Scottish Region) [1973] 8 ITR 636, 637:

“It is the duty of the parties to present the relevant evidence before the tribunal. That is not, of course, to say that where persons appearing before a tribunal are not legally qualified and are manifestly unversed in legal procedure that the tribunal will not give them such assistance as they can in presenting their case. But it cannot be too emphatically stated that the duty lies upon the parties to place the relevant evidence before the court.”

20. Most recently the point was expressed in Eastern Eye (Plymouth) Ltd v Hassan and Singh (27 February 2015) UKEAT/0383/14 by HHJ Eady QC where she said, at paragraphs 20 and 21:-

“20. The question that arises on this appeal is whether the ET was wrong to refuse to consider the submission on the reconsideration application given that the point had not been raised at the original hearing.

21. In general it will not be open to an ET to re-open a point on reconsideration when a party has failed to raise it at the original hearing. In Lindsay v Ironsides Ray and Vials [1994] ICR 384 EAT, for example, it was held that an ET was wrong to grant a review on the ground that the Claimant’s representative had not addressed the ET on its discretion to extend time in a race discrimination case. Mummery J (as he then was) stated:-

‘…failings of a party’s representative, professional or otherwise, will not generally constitute a ground for review. That is a dangerous path to follow. It involves the risk of encouraging a disappointed applicant to seek to re-argue his case by blaming his representative for the failure of his claim. That may involve the tribunal in inappropriate investigations into the competence of the representative who is not present at or represented at the review…’ ”

Mr Upton added, rightly, that the change from the previous rules of procedure which had been considered in those authorities to the rules as now contained in the Employment Tribunal Rules of Procedure 2013 effected no change of substance. They did not permit a Claimant to have a second bite of the cherry, and the broader interests of justice, in particular an interest in the finality of litigation, remained just as important after the change as it had before: see Outasight VB Ltd v Brown [2015] ICR D11.

21. These principles apply generally. It was, further, recognised in Lindsay v Ironsides Ray and Vials, drawing upon the authority of Trimble v Super Travel Ltd [1982] ICR440, at 442 (per Browne-Wilkinson J), that the power to review was most properly to be used where due to an oversight or to some procedural difficulty one or other party could properly say that he had not had a fair opportunity to present his argument on a point of substance. That would be a procedural short-coming in the proceedings, and this could correctly be dealt with by a review. As Browne-Wilkinson J summed it up:

“In essence, the review procedure enables errors occurring in the course of proceedings to be corrected but would not normally be appropriate when the proceedings had given both parties a fair opportunity to present their case and the decision had been reached in the light of all relevant argument.”

An example of the same exception was given in the first in time of the cases on which Mr Upton relied, that of Flint v Eastern Electricity Board. Philips J noted in his judgment that in the earlier case of Estorffe v Smith [1973] ICR 542, where a tribunal proceeded to decide a point which a party to the litigation had (not unreasonably) thought was dead, and which to some extent was sprung upon him, a further hearing had been ordered to give him a fair opportunity to deal with the issue. It was plain that Mr Justice Philips saw this as entirely permissible. The decision in Eastern Eye is an example of this exceptional approach: the Tribunal made findings of fact, in a reserved judgment, which led to a conclusion as to the proper calculation of the national minimum wage due to the Claimants. However, the question how the calculation should have been carried out on the basis of those findings had not been addressed initially.

22. How do these principles apply to the present appeal against the March decision? These facts stand out. First, the application for reconsideration which was granted was one made by Dundee and not by the Claimant: her application failed. The authorities talk of it being wrong to provide a “second bite of the cherry”: here, however, the party which appeals against the decision to hold a reconsideration is the party asking for it, not the party resisting it. On the face of it, therefore, Dundee is complaining now that the Tribunal should not have made the order it was asking it to make. Second, a ground for permitting the reconsideration hearing was that the Tribunal accepted

“..the point made by the Respondents that they did not have the opportunity to cross examine the Claimant on this point, as she did not give evidence on the possibility that she would have obtained a full-time job at ASDA. They also accept that the Respondents were never given the opportunity to make submissions on this point, as the Claimant did not put forward this claim”.

The ruling that the Dundee had established grounds for reconsideration was thus linked to its own submissions that it should have been allowed to cross-examine the Claimant. If it then chose to do so (as it did at the reconsideration hearing) it was inviting evidence from the Claimant about the very matter upon which it now argues no evidence should have been admitted.

23. Though the principal thrust of Mr Upton’s complaint was that he had not had a proper opportunity to make submissions about the conclusion which the Tribunal drew from such evidence as was before it at the hearing leading to the December judgment, it is clear that Dundee was submitting that it should have had a chance to lead evidence, and to test the evidence given before the Claimant (see, for instance, Ground 6 of the Notice of Appeal of 17^th February 2015).

24. There is a tension between an argument that one party was prevented from calling evidence which it might have done, and have questioned the other party about their evidence, on the one hand, and making submissions upon the evidence that had been given, on the other. The latter involves no fresh evidence at all: the former invites it. The Tribunal understood Mr Upton to be submitting that he should have been offered an opportunity to do the former. The notice of appeal complains about the decision of the Tribunal to permit the giving of evidence by the Claimant: but from the terms of the judgment of March, it appears that it was invited to do so (even if the evidence was not evidence to be advanced in chief by the Claimant, but only in answer to such questions as Dundee chose to ask of her, coupled with such further evidence as Dundee might wish to advance in its own case). So viewed, if the Tribunal fell into error it was not in ordering a reconsideration, but in permitting the Claimant to advance further evidence before hearing cross examination. In the light of the principles of finality, and the limited scope within which Dundee had invited the Tribunal to consider further evidence, this was in my view an error. However, it was a procedural irregularity occurring at the reconsideration hearing, as to which there is no outstanding notice of appeal before me: the scope of the appeal before me (whether there should have been a reconsideration hearing at all) is limited to matters arising before the reconsideration was heard, and therefore cannot be determined by the conduct of the proceedings at the hearing itself. The Order made, which is under challenge before me, does not specifically require the admission of fresh evidence in chief.

25. My only hesitation in reaching this decision arises because it appears that at the May reconsideration hearing the Tribunal expected Ms Malcolm to give evidence, and accepted it from her: this may suggest that which it had in mind to do later, and made clear to the parties in March, though it did not formally record it in its judgment. Accordingly, though inclined to dismiss the appeal on the technical ground that the Tribunal was invited by Dundee to offer a reconsideration, and did so in terms which were appropriate to rectify the complaint of procedural irregularity which Dundee had made about the January decision, without any error of law being apparent from the fact of or on the face of the Order it made, I think it right to approach that January decision on the basis that I must consider whether the decision was one justified on the evidence then put before the Tribunal and not on evidence received later at the May hearing. However, I also consider that any question of procedural irregularity said to have occurred because the Tribunal determined compensation upon a basis which had not formally been argued before it cannot succeed, since the Tribunal subsequently rectified that defect by permitting further submissions in May. Further, I note that the nature of the cases advanced at the reconsideration hearing demonstrates that Dundee had no further evidence to give of its own as to the likelihood of the Claimant obtaining a full-time job at ASDA.

The January Appeals

26. Mr Upton’s principal case was that the Tribunal made an award in respect of a loss of earnings which had not been claimed. The applicable principles are effectively the same as those which are discussed above, which generally prohibit reconsideration of a claim to hear an argument which was not maintained before, or to hear evidence which is not truly fresh evidence. The obligation to put forward a case rests upon the party whose case it is. A Tribunal cannot advance a case which a party does not make for itself. In advance of the hearing, the Claimant had been asked to identify any loss she claimed. She did not respond by claiming a full-time job at Asda but, rather, a full-time job as a Lab technician at Dundee University and continuing part-time earnings from Asda. Once the prospect of a full-time job was rejected, there was no other contention which the Tribunal could properly accept. She had already had an earlier opportunity to advance a remedies case and had been permitted a second chance. The Tribunal made it clear at the preliminary hearing that she was expected to produce evidence of her losses. So far as a full-time job was concerned, she attempted to do so only in respect of a Lab Technician post at Dundee University. So far as Asda was concerned, she contended only for some part-time loss. Further, there was insufficient evidence to establish a loss of a full-time job at Asda.

27. Mr. Malcolm accepted that he and his sister had not proposed ASDA as a full-time employer, and had been surprised when they received a judgment awarding money on that basis. The Claimant’s case had been that she could not work because of the illness caused by the conduct for which Dundee was responsible in law. Though “needs must”, and she would have worked in any job, she would have earned more than the Asda earnings, because she had worked and would be able to work as Lab Technician. She would not have worked in a school again, but potential employers were Angus College, Abertay, and Angus Councils as well as Dundee University. The Tribunal should not have rejected her claim on the basis she had put forward too little evidence, when her years of experience, her qualifications, and her demeanour fitted her for such a job. It had raised the bar of the burden of proof too high, to a point which it was well nigh impossible to meet, and thereby been in error. Future employability was a matter of possibilities, and the Tribunal wrongly sought probabilities. Given that the Claimant had experience that young graduates seeking appointment as Lab technicians would not have, she must have stood a good chance of obtaining such a post.

Discussion and Conclusion

28. The issue in the January hearing was what compensation it was appropriate to award, in particular in respect of loss of earnings. As the Claimant’s Notice of Appeal says, a claimant is entitled to be put in the position in which she would have been but for the unlawful conduct. Though Mr. Upton’s principal focus was on the Tribunal’s making findings in the absence of argument, both appeals rest on the question what evidence is sufficient to show this.

29. The remitted question to be answered in the light of this evidence was “what work the Claimant would have done, the salary she would have been paid, and whether the work would have been pensionable”, with compensation to be calculated accordingly.

30. The use of the word “would” here is not to encourage an approach on the balance of probabilities but to ask a Tribunal to envisage as best it could what might have happened had the Claimant been fit: it is well established that the assessment of future loss is an assessment of chances, not a question of established fact in respect of which proof on a balance of probability is the proper approach, and the same approach necessarily applies where the task is to envisage a state of affairs which never actually existed. The point is stated most clearly in Mallet v. McMonagle [1970] A.C. 166. In that case, in assessing compensation for a widow bereaved by a road traffic accident, the court had to ask what would have happened but for the death of the deceased. The court had to erect the hypothesis that he was not killed and then assess what his employment career would have been. In his speech Lord Morris of Borth-y-Gest said, at p. 173:

"In cases such as that now considered it is inevitable that in assessing damages there must be elements of estimate and to some extent of conjecture. All the chances and the changes of the future must be assessed. They must be weighed not only with sympathy but with fairness for the interests of all concerned and at all times with a sense of proportion."

Lord Diplock said, at p. 176:

"The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past the court decides upon a balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."

These principles were adopted, by reference to those passages, in a case where acts of sex discrimination fell to be compensated by an Employment Tribunal: that of Ministry of Defence v Cannock [1994] ICR 918 (see pages 937 C-H, and 949 C– H). There can be no doubt therefore that they apply in the employment field, just as in cases of personal injury or fatal accident.

31. Accordingly, insofar as the Watt Tribunal was concerned, its task was not seeking to establish what would have been the job and the earnings of the Claimant on the balance of probabilities. That undoubtedly was not what Lady Stacey was asking it to do by use of the word “would”. If it had done so, it would have been in error. There is however a resonance of this approach in the argument of Mr. Upton, insofar as he seeks to argue that if the Claimant failed to produce enough evidence to show that she had something that might realistically be termed a chance of obtaining a Lab Technician’s job – albeit a chance considerably less than 50% - she should be regarded as not having proved any loss of earnings at all. Not having advanced any argument that she would have had specific alternative work, he submits she should be treated as if she had no earnings at all. Such a stark “all or nothing” approach is reminiscent of that rejected in Cannock (see the citations above), and appears counter-intuitive: it would be to hold that a woman who had worked all her adult life, who needed to work to pay her bills, who had even taken a part-time job over and above full-time hours, and in respect of whom it had to be assumed that she had been completely unaffected by the discrimination she had suffered, had no realistic chance of doing any remunerative work beyond 15.5 hours a week at Asda throughout the period from her resignation until 2013.

32. If no question of compensation for loss of wages had been before the Tribunal, then a Tribunal would not be in error of law in failing to deal with it. But the issue was before the Tribunal – it had been remitted to it, in broad terms. The argument for Mr.Upton thus becomes an argument as to the degree of specificity to be required of a litigant as to such an issue, once the issue in general terms is before the Tribunal: does the litigant have to specify in her argument precisely what a future job will be, when the near certainty is that there will be one, but where there is insufficient to establish with any clarity what it may be?

33. Turning to Dundee’s principal contention, the position in the present case is analogous to that in which a litigant pleads a case, but advances only part of it orally before a Tribunal. The thrust of Mr. Upton’s logic is that in such a case a Tribunal cannot properly investigate the pleaded issue insofar as it has not been specifically advanced. However, although where there is a pleaded complaint which is not advanced at the hearing by a litigant an employment tribunal is not bound to investigate that complaint for itself, it is not prohibited from doing so - see the remarks of Peter Gibson LJ in Mensah v East Hertfordshire NHS Trust paragraph 28, where he said:

“..it must be for the judgment of the particular industrial tribunal in the particular circumstances of the case before it whether of its own motion it should investigate any pleaded complaint which it is for the litigant to prove but which he is not setting out to prove..”

34. Thus it must follow that where a complaint is pleaded in very general terms but only some aspects of it are advanced in detail, then although a Tribunal has no duty to enquire as to other aspects of the same general complaint which have not been the subject of specific evidence or submission, it may do so. It is not in error of law if it does. All the more must this be the case where the matter is not merely one of pleading but is the very issue remitted by the Appeal Tribunal.

35. Accordingly, in my view, the Tribunal was entitled to ask itself here what the evidence showed as to the issue it had to resolve – as to the likely loss of earnings, assessed in accord with the principles identified above, neither over nor under-compensating. In short, I reject the argument that once the Claimant failed to bring forward sufficient evidence to show that she had some realistic chance of being appointed a Lab Technician at the University her future loss of earnings was necessarily to be assessed at nil (part-time earnings at Asda aside).

36. This still leaves the question whether the evidence at the January hearing was sufficient to entitle the tribunal to reach the conclusion it did. In answering this, it must be borne in mind that references to “speculation” on the part of the Tribunal do not assist Dundee: not only was the word “estimate” (with all the uncertainties inherent in making one) adopted by Lord Diplock (see above) but it is well recognised, for instance, that such as an award in respect of a loss of earning capacity in a personal injury case may be based on slender foundations (see, for instance, the well-known description of it by Stephenson LJ in Moeliker v Reyrolle [1976] ICR 253, 265H as inevitably speculative, though he thought such an award nonetheless appropriate so long as the risk that the claimant would suffer future disadvantage on the labour market was neither fanciful nor negligible. So to the present appeal: if, on a fair assessment of the evidence which the Tribunal recorded, there was no more than a fanciful or negligible chance of the Claimant being employed full time in a job such as that at Asda, the appeal would succeed. If, however, there was evidence to support the conclusion to which the Tribunal came, which showed that there was a real prospect of her working in such as the capacity it identified, it would not be wrong to assess compensation on that footing.

37. At paragraph 23, the Tribunal set out the evidence as to the Claimant’s skills and employment history. She had never been unemployed till November 2002. It accepted her case that she needed to work. Though her preference was clearly to work as a Lab Technician for the University, and if not that in a Bio-Tech company, her evidence as to that was “extremely unspecific” (paragraph 73). However, the Tribunal’s reasoning (paragraphs 99 and 100) first involved a conclusion that it was highly unlikely that the Claimant would have been without work. There was ample evidence for this starting point. It was based on the Claimant’s history, her attributes, the fact that she had a mortgage (and the normal bills that everyone has) to pay. As to her gaining that work at Asda there could - significantly – be added to the history of near certainty that she would have done some remunerative work that (a) she had already worked at Asda for around 5 years without problems; and (b) whereas the Tribunal considered that it needed evidence to show that there would have been a specific vacancy as a Lab Technician which the Claimant might have filled it was “likely that vacancies for full-time check-out operators at Asda Stores occur on a fairly regular basis.” This was the view of a Tribunal local to Dundee. It consisted of 3 persons, 2 selected for their particular experience of the labour market. It is well established that a Tribunal is entitled to use its own knowledge as to the local labour market. There is nothing perverse or exceptional in this Tribunal supposing that vacancies for full-time check-out operators at a major supermarket occur on a fairly regular basis. I suspect that a change of face at the tills is not an infrequent experience for most people. The Tribunal’s assessment in the last sentence of paragraph 100 was:-

“If the Claimant could have got nothing else, the Tribunal are satisfied she would have taken a full-time job at Asda.”

38. This amounts to saying that earnings at the level she would have obtained at Asda were the least she might expect during the period concerned. It is clear from the level of earnings which the Tribunal accepted that this was to place the Claimant’s income towards the very bottom of the general wage scale. Mr Malcolm for his part emphasises this by noting that, having awarded damages on the basis of a full-time working week at Asda, the Tribunal declined to make any further additional award for the period 2005 onward in respect of her part-time earnings, though her case had been that she would have worked as a Lab Technician throughout a full-time week, and in addition kept the part-time job at Asda as she had already done for some time. Though I am deliberately taking no account of any evidence which the Tribunal heard and recorded in its May judgment, in that decision it also commented upon what it had decided in January. It observed that the 3 years which it had assessed as an appropriate time to allow as the period between the start of the Claimant’s period of loss and the assessed commencement date of her full-time post at Asda was a relatively long period, and that it had adopted such a lengthy period because there was no specific evidence about job availability from Asda. This, together with the low rate of pay, and not reckoning in any additional part-time work the Claimant might do, demonstrates that the Tribunal was adopting a carefully conservative approach to the overall loss of earnings of the Claimant.

39. In conclusion, in my view, there was evidence sufficient to entitle the Tribunal to assess the loss of earnings as it did. The fact that the Claimant did not advance her claim on the basis of full-time loss of earnings from Asda did not mean that she was abandoning a claim that she had lost earnings: it was not a case of “Lab Technician for the University or nothing”. The Tribunal was (see Mensah) entitled to investigate the matter which was remitted to it, on the evidence available to it. If anything – see the discussion of the Claimant’s appeal below – it tended towards taking a particularly conservative approach in making that assessment. I see no error of law in its conclusion. Its starting point that the Claimant was highly likely to have had some paying work is unassailable, and once that point was reached the process was one of assessment. Albeit that such an assessment has to be based on some evidence, this may be slender – though here it was more than that. The fact that the Tribunal should have invited Dundee to deal with whether earnings should be assessed on some basis such as awarding earnings equivalent to full-time earnings as a check-out operator at Asda was a procedural irregularity, but this was remedied by giving Dundee the opportunity to argue the point at the May Reconsideration Hearing. Dundee’s appeals fail.

Ms Malcolm’s Appeal

40. As to the Claimant’s appeal, Mr Malcolm had to accept that it could not be an error of law for a Tribunal to fail to deal with an argument which had not been made to it. He accepted that the references to Angus and Abbertay had not been before the Tribunal. He could therefore not show any error of law in the Tribunal’s failure to consider job opportunities there.

41. There is some force in his submission that the Tribunal took too stringent a line on the standard of proof required to make a finding as to future loss. At paragraph 17 the Tribunal, recording the view which Employment Judge Watt had made at the Preliminary Hearing proceeded upon the basis that the burden of proof was on the Claimant to “satisfy the Tribunal of the likelihood” of the Claimant’s loss “…both on the question of wage loss and on the question of pension loss.” Those words are suggestive of an approach on balance, but in my view, on a fair reading they do not go that far. Though I would have been happier had the Tribunal recognised it was dealing with chances, rather than probabilities I cannot say from the words it used that it clearly was not: nor that its conclusion at paragraph 75 that there was “insufficient evidence for the Tribunal to come to a conclusion that it is reasonably likely that the Claimant would have obtained a job as a Lab Technician anywhere” goes so far. The word “would” is often used colloquially to express a conclusion as to the future, worked out on the best assessment of chance, just as it may indicate a decision on balance.

42. In essence, the Claimant had a very difficult task in showing that there was any real chance that she would have had a job as a Lab Technician at Dundee University. The Tribunal might reasonably have suspected that there were few such posts: hence its enquiry as to whether there was any evidence as to there having been a vacancy. There was none, despite the Claimant having been given every opportunity to produce it. In the absence of that evidence the Tribunal was entitled to conclude that there was no real or substantial chance that the Claimant would work in that or a similar capacity. It would have been entitled also to bear in mind that when working in that capacity for Dundee performance issues had been raised and the Claimant had accepted a demotion.

43. Grounds 1-3 only of the Notice of Appeal were permitted to be heard before me. Ground 2 largely recites facts. An appeal will succeed only in respect of fact if it is shown that the Tribunal reached a perverse conclusion, or that it misunderstood some material fact. Neither applies here. The ground, on its face, argues that the Tribunal should have “limited itself to the facts”: insofar as this means that it should have restricted itself to the evidence before it, it did do so, and for that reason concluded there was no evidence that the Claimant would have obtained a post as a Lab Technician. Insofar as it goes further it amounts to assertion unsupported by evidence, and cannot succeed. Ground 3 takes this no further: the principle, derived from Cannock, is correct, but resulted in the form of the issue remitted to the Tribunal by Lady Stacey. It was precisely that principle which the Tribunal applied in any event when it determined that the Claimant should be compensated by being paid that which the evidence, taken as a whole, showed she had lost – namely, the equivalent of full-time earnings as an Asda checkout operator – even if it was insufficient to establish a greater loss.

44. Ground 1 has more substance. As I have already pointed out, the observation at paragraph 17 of the judgment that the Claimant had to satisfy the Tribunal of the likelihood of the claimant’s loss both on the question of wage loss and on the question of pension loss comes close to reading as if the Tribunal was applying the balance of probabilities approach appropriate for determining past issues of fact, rather than assessing on all the evidence what the chances were of remunerative employment, (see the citations from Mallett and Cannock above) and, as best it could, an assessment of the resulting loss, taking account of uncertainties as well as opportunities. Given the way in which the Tribunal went on to apply its self-direction, however, I have concluded it did not in the event apply too rigorous a standard, nor one which was inappropriate when determining the loss caused to the Claimant as a consequence of the wrong for which Dundee is liable.

45. It follows that the Claimant’s appeal too must be dismissed. The Tribunal did not apply the wrong approach; it did apply the correct principle by which to assess compensation; that assessment depended on what it made of the evidence, and it was entitled to consider that the evidence was insufficient to show that the Claimant had a real chance of obtaining the post on which she had pinned her hopes.

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Dundee City Council v Malcolm (Sex Discrimination: Other losses) [2016] UKEAT 0021_15_0902 (09 February 2016) URL: http://www.bailii.org/uk/cases/UKEAT/2016/0021_15_0902.html Cite as: [2016] UKEAT 0021_15_0902, [2016] UKEAT 21_15_902

United Kingdom Employment Appeal Tribunal