HM Land Registry v McGlue UKEAT/0435/11/RN

Appeal against the awards made at a remedy hearing following the claimant’s successful claim of unlawful sex discrimination. Appeal allowed in part.

The claimant was on a career break when the respondent offered the workforce early retirement. She applied but was turned down because those people on a career break who were not due to return before a set date were excluded from consideration. Her situation was compounded when she was told that she could still be considered for the scheme but then was not. At the ET, she claimed 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, and that that criterion disadvantaged her in particular. She was awarded £71,000 in compensation which was the amount she would have received if she had been given early retirement, plus sums of £12,000 for injury to feelings and £5,000 for aggravated damages. The respondent appealed the remedy decision.

The EAT rejected the argument that, because the claimant was still employed by the respondent, she had suffered no financial loss, and therefore the compensatory award should be reduced to nil. The claimant said that if she had been released early under the scheme, she would still have found another job paying a similar wage to the respondent, and so her loss was that amount that she would have been paid had she been accepted. Also, the evidence was that she would have been released if she had not been excluded from consideration by the discriminatory act. However, the EAT reduced the award by £5,000 because there was no sufficient basis for awarding aggravated damages, despite the claimant being unhappy at work and feeling bullied.

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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

**APPEARANCES**

For the Appellant MS M WHEELER (of Counsel) Instructed by: Flint Bishop Soliciors St Michael's Court St Michael's Lane Derby DE1 3HQ

For the Respondent MR CAPTHORPE (of Counsel) Instructed by: Coupe Bradbury Solicitors The Chapel House Bath Street Lytham FY8 5ES

**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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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**
  1. 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."

  1. 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."

  1. 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.
  1. 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.
  1. 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."

  1. 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."

  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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**
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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**
  1. As will be seen, we take a rather different view when we come to the question of aggravated damages.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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
  1. 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.
  1. 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.
  1. For those reasons we allow the appeal so far as it relates to the award of aggravated damages.
**Compensatory award**
  1. 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.
  1. 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."

  1. 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.
  1. 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.
  1. 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."

  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. Accordingly we reject this fourth ground of appeal.
**Conclusion**
  1. 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.
  1. Finally, we should thank in particular Ms Wheeler for the clarity of her argument explaining complex factual circumstances with economy and style.

Published: 28/03/2013 14:16

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