The claimant's claim of sex discrimination was upheld after various hearings at the ET and EAT. One ET, on remission, had to consider whether the psychiatric injury suffered by the claimant was or was not divisible between one incident of sex discrimination (the Dent Comment) and 15 other alleged incidents which were not found to be unlawful; and if so, what was the apportionment between the effect of the Dent Comment and the other 15 incidents and, thirdly, what if any effect did the subsequent (unlawful) dismissal have on that apportionment? The ET ruled that the claimant's illness was not divisible between the incidents. The ET also ruled on the date by which the claimant should have mitigated her loss. The respondent appealed both decisions.

The EAT dismissed the appeal. Both apsects were permissibly dealt with by the Employment Tribunal and no error of law had been shown.

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Appeal No. UKEAT/0097/15/DA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 24 September 2015

Judgment handed down on 23 October 2015

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

BAE SYSTEMS (OPERATIONS) LIMITED (APPELLANT)

**

**

KONCZAK (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR PAUL GILROY (One of Her Majesty's Counsel)
Instructed by:
Eversheds LLP
Eversheds House
70 Great Bridgewater Street
Manchester
Lancashire
M1 5ES

For the Respondent
MR TRISTAN JONES (of Counsel)
Bar Pro Bono Scheme

PRACTICE AND PROCEDURE - Disposal of appeal including remission

The case was remitted to the same Employment Tribunal on two aspects. Both permissibly dealt with by the Employment Tribunal. No error of law shown. Appeal dismissed.

1. This case, which has been proceeding before the Manchester Employment Tribunal, has a long history. The Claimant, Mrs Konczak, commenced permanent employment with the Respondent, BAE Systems (Operations) Limited in 1999. She was dismissed by a letter dated 23 July 2007.

1. She brought three separate complaints before the Employment Tribunal which were combined and fully defended by the Respondent. The matter came on for a Substantive Hearing before an Employment Tribunal chaired by Employment Judge Cook ("Cook 1") in July 2008. By a Liability Judgment with Reasons dated 8 October 2008 that Employment Tribunal rejected 15 individual complaints of sex discrimination said to have occurred between July 2004 and April 2006. However, the Employment Tribunal upheld a single complaint of sex discrimination said to have taken place on 26 April 2006 ("the Dent Comment"). On that occasion, the Employment Tribunal found, her line manager, Jeremy Dent said to the Claimant "women take things more emotionally than men whilst men tend to forget things and move on".

1. The Claimant then went off work, suffering from psychiatric illness. The Dent Comment was the final straw, according to the Claimant's evidence, leading to her going off work (Cook 1, paragraph 69).

1. In June 2007 she wrote to the Respondent stating that she wished to return to work, asking for risk assessments to be carried out. However, she was not allowed to return but was dismissed.

1. The Employment Tribunal found that her dismissal was unlawful on the grounds that it was an act of direct disability discrimination and/or disability related; that the Respondent had failed to make reasonable adjustments or carry out a risk assessment and was an act of victimisation, the protected acts being her complaints of sex discrimination. The dismissal was also unfair.

1. An appeal by the Respondent against the Cook 1 Liability Judgment was dismissed by the Employment Appeal Tribunal (HHJ McMullen QC presiding) on 20 July 2009.

1. The case returned to the Cook Employment Tribunal ("Cook 2") for a Remedy Hearing in April 2011. In addition to various injury to feelings awards, no longer in issue, the Cook Employment Tribunal, by a Reserved Judgment with Reasons dated 20 June 2011, ruled that the Claimant had acted unreasonably in refusing an offer in settlement of £75,000 made by the Respondent in July 2008 and limited her financial loss arising from the Respondent's unlawful acts to £15,411, being loss suffered between dismissal, 23 July 2007 and July 2008.

1. During the course of the Cook 2 hearing an issue arose as to whether the Claimant had waived legal privilege. At a separate hearing Employment Judge Howard held that she had done so.

1. Against both the Cook 2 Remedy and Howard Judgments the Claimant appealed. Those appeals came before a decision of the Employment Appeal Tribunal on which I sat ("the Clark EAT"). We dismissed the appeal against the Howard Judgment but allowed the appeal against the Cook 2 Remedy Judgment insofar as it limited financial loss to the period ending July 2008. Our Judgment was handed down on 3 May 2012. Remedy was remitted to a fresh Employment Tribunal. That new Tribunal was chaired by Employment Judge Sherratt.

1. I am reminded by reference to the written submissions of Mr Gilroy QC, who has represented the Respondent throughout, at the first Sherratt Employment Tribunal hearing ("Sherratt 1") that an issue arose between the parties as to the scope of our remission to the new Employment Tribunal. For the avoidance of doubt I resolved that issue by a letter to the parties dated 4 October 2012, in these terms:

"The remedy appeal succeeded on the cut-off point for loss arising from the unlawful dismissal and the single act of sex discrimination found (i.e. the Dent Comment). The Respondent may well be correct in arguing, at the remitted Employment Tribunal hearing, that no separate pecuniary loss flows from the single act of sex discrimination (the Dent Comment) as opposed to the unfair and discriminatory dismissal. That is a submission for the next Employment Tribunal to consider."

1. The Sherratt 1 remitted Remedy Hearing took place in December 2012. Whereas the Cook 2 Remedy Hearing included oral evidence from two consultant psychiatrists, Dr Craig for the Claimant and Dr Jarman for the Respondent, only Dr Jarman gave evidence before the Sherratt Employment Tribunal. Dr Craig was not called by the Claimant for financial reasons. By a Reserved Judgment with Reasons dated 18 February 2013 the Sherratt Employment Tribunal awarded the Claimant compensation totalling £318,629.66 in addition to the additional awards made by Cook 2 and no longer in issue.

1. Against Sherratt 1 both the Respondent and the Claimant appealed. Those appeals came before a division presided over by HHJ Hand QC ("the Hand EAT"). By a Judgment delivered at a hearing held on 13 January 2014, the Hand EAT allowed both appeals to the extent set out in an Order seal-dated 24 January 2014.

1. It will be necessary in due course for me to look closely at the precise terms of the Hand EAT Order in relation to what I shall call "the Choudry Note", however, at this stage I would characterise the scope of the remission to the Sherratt Employment Tribunal under the heads of causation, mitigation and calculation.

1. Materially, when the matter returned to the Sherratt Employment Tribunal ("Sherratt 2") the parties had agreed corrections to the Sherratt Employment Tribunal's initial calculation of loss which resulted in a new total compensation figure of £360,178.60. That resolved the Claimant's appeal to the Hand EAT.

1. As to causation, the Hand EAT asked three questions of the Sherratt Employment Tribunal on remission. By way of context, in Sherratt 1, paragraph 27, the Employment Tribunal answered the first question in the list of issues agreed by counsel (see paragraph 20.1), namely to what extent did events within the Claimant's workplace (as alleged by the Claimant) during the 26 months prior to her conversation with Jeremy Dent on 26 April 2006 cause or contribute to her current condition/mental state? as follows:

"27. The Tribunal takes the view that the claimant's condition was "normal" prior to the end of July 2004. We have not received any evidence of any events outside of the claimant's working life that in our judgment might have led to any change in her psychiatric health from July 2004 until the comment made by Mr Dent on 24 April 2006 and so we find that it was only matters arising in the workplace that caused any deterioration in the claimant's mental health. On the basis that these matters occurred in the workplace, they are the vicarious responsibility of the respondent and so in this particular case we do not find that there were any causes which were not the legal responsibility of the employer that led to any change in the claimant's mental state from July 2004 to April 2006."

1. At paragraph 39 of their Judgment the Hand EAT found that analysis of causation to be unsustainable. Sherratt 1 confused the concepts of vicarious liability and causation. Their analysis overlooked the finding by Cook 1 that 15 of the 16 incidents complained of as acts of sex discrimination had not been upheld. It was necessary to separate out, if possible, the causative effect on the Claimant's psychiatric condition of the 15 incidents which did not involve unlawfulness on the part of the Respondent and the Dent Comment which was unlawful.

1. Having reviewed the state of the medical evidence, as they understood it, at both Cook 2 and Sherratt 1 (see paragraph 40), the Hand EAT (paragraph 41) allowed this first ground of appeal by the Respondent and directed the Sherratt Employment Tribunal, on remission, to consider whether the psychiatric injury suffered by the Claimant was or was not divisible, following discussion of authority at paragraphs 25 to 38 including the judgment of Keith J in Thaine v London School of Economics [2010] ICR 1422 EAT.

1. The precise terms of remission on this causation question, which the Sherratt Employment Tribunal was bound to follow, is to be found in the Hand EAT Order at paragraphs (i) to (iii). First, the Sherratt Employment Tribunal was to determine whether, on the evidence heard by and on the facts found by it and also on the facts found by the Cook Tribunal (Cook 1 and 2) save for those reversed on appeal to the Clark EAT, the cause of the psychiatric illness suffered by the Claimant from 26 April 2006 was capable of being divided between the Dent Comment and the 15 other alleged incidents over the previous 21 months not found to be unlawful by Cook 1. Secondly, if so, what is the apportionment between the effect of the Dent Comment and the other 15 incidents and, thirdly, what if any effect did the subsequent (unlawful) dismissal on 23 July 2007 have on that apportionment?

1. On those three questions the Sherratt Employment Tribunal, on remission, found, in answer to the first, that the cause of the Claimant's psychiatric illness as at 26 April 2006 was not divisible; see the second Sherratt Employment Tribunal Remedy Judgment ("Sherratt 2") dated 30 October 2014; Reasons paragraph 23. In these circumstances the Employment Tribunal found it unnecessary to consider the second and third remitted issues (paragraph 25).

1. Finally, mitigation. The point here (Hand EAT Order, paragraph (iv)) was essentially a "Meek" question. Why did the Employment Tribunal conclude (Sherratt 1, paragraph 93) that the date on which the Claimant failed to mitigate her loss by commencing a course of medication was 24 July 2010?

1. Against that background I now turn to consider the two questions raised by the Respondent in the present appeal against Sherratt 2 in relation to both causation and mitigation.

1. It is important to focus on the precise direction as to the law given to the Sherratt 2 Employment Tribunal on remission by the Hand EAT. Having discussed the perceived difference in approach between Dame Janet Smith and Hale LJ, as she then was, as to whether psychiatric injury can ever be indivisible (see Hand EAT, paragraphs 33 to 38), the Hand EAT appears to accept (paragraph 34) that whether or not a state of health is divisible or indivisible is a question of fact for the Employment Tribunal. As to that question of fact the Hand EAT noted (paragraph 40) that a controversy existed as to whether there was any significant medical evidence before Sherratt 1 that enabled it to reach a conclusion as to whether or not the injury was indivisible. It was that controversy, it seems to me, which led the Hand EAT to remit the first (and if necessary, second and third issues) to the Sherratt Employment Tribunal. At paragraph 40 the Hand EAT refers to Dr Craig apparently ascribing a 10% contribution to the 15 incidents, whereas Dr Jarman thought that precise attribution was impossible. Further, the Hand EAT went on to record a submission by Mr Gilroy that (at Cook 2) Dr Craig accepted in cross-examination that the contribution could be of the order between 20% and 50%.

1. That brings me to the Choudry Note. At Cook 2 Mr Gilroy's instructing solicitor, Ms Choudry, took a note of his cross-examination of Dr Craig. The relevant entry (allowing for abbreviations) reads as follow:

"Q If the ET looking for range Feb '04 - Apr '06 how much of symptoms are attributable to 26 months from 04-06

A Significant proportion. Difficult to say 20-50%. What set situation in motion!"

1. Mr Gilroy has taken me to references to that question and answer in his written submissions during the course of these proceedings. It is cited at paragraph 1 of his closing submissions at Cook 1; paragraph 29 of Sherratt 1 and in footnote 3 in his closing submissions at Sherratt 2. Plainly it was also referred to in submissions to the Hand EAT (see paragraph 40).

1. However, the Cook Employment Tribunal made no reference to that evidence by Dr Craig in their Reasons (Cook 2) and Dr Craig did not, as I have observed, give evidence at Sherratt 1 or 2. Which raised a question at Sherratt 2; could the Employment Tribunal take account of that "evidence" contained in the Choudry Note? They ruled, at paragraph 19 of their Reasons, that they could not in light of the terms of remission by the Hand EAT. The evidence was not given before them and no finding of fact to that effect was made by the Cook Employment Tribunal.

1. Mr Gilroy challenges that ruling in this appeal. He submits that as a matter of construction the Hand EAT Order entitled the Sherratt Employment Tribunal to consider, on remission, evidence heard by the Manchester Employment Tribunal. That includes the Cook Employment Tribunal. The note taken by Ms Choudry is not, of itself, gainsaid. Consequently it was wrong for Sherratt 2 to exclude Dr Craig's answer in cross-examination at Cook 2. Had it been taken into account the Employment Tribunal was bound to conclude that the Claimant's injury as at 26 April 2006 was divisible between the Dent Comment and the 15 other incidents. Consequently the answer to the first issue remitted by the Hand EAT was that the injury was divisible and thus Sherratt 2 ought to have gone on to consider the second and, if necessary, third remitted issues.

1. I am unable to accept that construction of the Hand EAT Order. First, the Order records that the appeal (EAT/0243/13/GE) is an appeal from the Judgment of an Employment Tribunal sitting at Manchester and sent to the parties on 18 February 2013; that is, Sherratt 1. Secondly, the matter was remitted for rehearing to the same Employment Tribunal (i.e. the Sherratt Employment Tribunal). Thirdly, issue (i) is to be considered, on remission to the Sherratt Employment Tribunal on the following material only; the evidence already heard by the Employment Tribunal and the facts found by it. Whilst that might, without more, have covered evidence heard and facts found by the Cook Employment Tribunal, as Mr Gilroy submits, those words are followed by these words:

"… and also on the facts found by … the Cook Tribunal …"

1. Thus a clear distinction is drawn between evidence heard and facts found by the Sherratt Employment Tribunal (at Sherratt 1) and the facts found by the Cook Employment Tribunal (Cook 1 and 2). That makes obvious sense. The facts found by the Cook Employment Tribunal are a matter of record and appear in their Reasons. The Sherratt Employment Tribunal was able to revisit evidence which it had heard. What it was not able to do was to revisit evidence heard by the Cook Employment Tribunal and put it into context. That is important because, whilst the precise question and answer recorded by Ms Choudry is not disputed, the point which Mr Jones would want to take is the overall context of the earlier cross-examination leading up to that question and answer. That may have been capable of resolution by the Cook Employment Tribunal but not the Sherratt Employment Tribunal. Thus, although I accept that Ms Choudry accurately recorded the exchange with Dr Craig relied upon and that Mr Gilroy referred to it in subsequent written submissions, I am unable to accept that it was evidence which the Sherratt Employment Tribunal was permitted to consider, under the clear terms of the Hand EAT remission, in relation to issue (i).

1. Having rejected that submission I return to the reasoning of Sherratt 2 in concluding that the injury, as at 26 April 2006, was not divisible. In doing so I bear in mind that the test is that articulated by Laws LJ in Rahman v Arearose Limited [2001] QB 351 and referred to at Sherratt 2, paragraph 22; the essential feature of a single indivisible injury is that there is:

"simply no rational basis for an objective apportionment of causative responsibility for the injury."

1. In finding that to be the case here the Employment Tribunal reviewed the evidence and facts found. They referred to Dr Jarman's opinion (see paragraph 20) that an attempt to apportion responsibility for the Claimant's condition as at 26 April 2006 would be no more than a guess. Further, they drew a distinction (paragraph 18) between Dr Craig's 90% comment as to perpetuation rather than causation of her symptoms. Finally, they accepted (paragraph 23) that the Claimant's condition on 26 April 2006 was triggered by the Dent Comment; the final straw, as recorded in Cook 1, paragraph 69.

1. Standing back, the question for me on appeal is whether, on the material properly before it and applying the law as directed by the Hand EAT, the Respondent has shown that the conclusion by Sherratt 2 that the relevant injury at 26 April 2006 was indivisible is one that is impermissible as matter of law. The answer is that I cannot. Consequently this challenge on the issue of causation fails.

1. The basis for remission of this aspect of Sherratt 1 appears from paragraph 43 of the Hand EAT Judgment. Why did Sherratt 1 conclude (paragraph 93) that the Claimant's failure to mitigate her loss by refusing medication did not arise until July 2010 when, Mr Gilroy submits, that refusal began no later than the date of dismissal, July 2007? In response Sherratt 2, at paragraph 27, simply cited an extract from Mr Jones' written submissions at that hearing and adopted the extract as their reasoning for arriving at the July 2010 date. That, says Mr Gilroy, is not a satisfactory answer to the fourth question raised by the Hand EAT remission Order.

1. I disagree. As Mr Jones has explained to me, by reference to the chronology of the Claimant's treatment, which was set out (based on the evidence and facts found at Sherratt 1) in his written submission leading up to the passage cited at Sherratt 2, paragraph 27; in particular, Mr Jones referred to a letter from Dr Gosall, Consultant Psychiatrist, who saw the Claimant in August 2007 and wrote letters dated 9 August 2007 and later 27 May 2009. I was referred to the latter. In summary, in May 2009 Dr Gosall acknowledged the Claimant's "distrust of psychotropic medication", however, they (antidepressants) remained an option in the future.

1. Underlying her condition then was the unresolved Tribunal litigation. However, as Mr Jones submitted at Sherratt 2 and the Tribunal accepted, what changed in 2010 was that the litigation remained unresolved and it was no longer appropriate to await the outcome of the proceedings. She was no longer under the care of the Community Mental Health Team (CMHT) but instead only her GP and that was the appropriate time for her to start her course of medication. Her failure then to do so amounted to a failure to mitigate, which is reflected in the assessment of loss (see Sherratt 1, paragraph 93). The date 24 July 2010 was selected for convenience, being three years after dismissal. Thus it was not simply the refusal to take the medication which constituted the failure to mitigate; it was that refusal in the context of the treatment chronology. I note that at paragraph 43 the Hand EAT suspected that the material was there for the Tribunal to reach conclusions (as to the July 2010 date). There was. Mr Jones spelled it out. Sherratt 2 agreed with his analysis. The parties know why the Tribunal reached its conclusion on the July 2010 date. No further steps are necessary.

1. For these reasons it follows that this appeal fails and is dismissed.