Appeal No. UKEAT/0140/15/LA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 22 April 2016
Judgment handed down on 18 July 2016
HIS HONOUR JUDGE DAVID RICHARDSON
DR A OLAYEMI APPELLANT
(1) ATHENA MEDICAL CENTRE
(2) DR A C OKOREAFFIA RESPONDENTS
Transcript of Proceedings
APPEAL & CROSS-APPEAL
|For the Appellant||No appearance or representation by or on behalf of the Appellant|
|For the Respondents||MISS ANNETTE GUMBS
85 Fleet Street
SEX DISCRIMINATION – Other losses
- The Claimant suffered PTSD in and after 2008 as a result of a campaign of harassment by the Respondent. She had suffered a previous episode of PTSD which had ended in 2003. The Employment Tribunal reduced the whole of the Claimant’s award for losses caused by her PTSD by 12.5% on the basis that her previous PTSD “contributed to the causation” of the latest episode. Appeal on this ground allowed and matter remitted to the same Employment Tribunal. The Employment Tribunal had not explained why it considered the previous episode of PTSD to have been a material cause of the present episode as opposed to merely rendering the Claimant vulnerable or susceptible to a further episode. In any event, the Employment Tribunal had not considered how the loss should be divided: a blanket reduction of 12.5% could not be justified.
- The Employment Tribunal deducted housing benefit from the loss of earnings award. Appeal on this ground allowed. Housing benefit legislation enabled re-assessment and “claw-back” of housing benefit in the event of an award in respect of loss of earnings from employment; in such circumstances it should not be deducted. Clenshaw v Tanner  EWCA Civ 1848, Savage v Saxena  IRLR 182 EAT considered.
- The Employment Tribunal had dealt properly with an issue related to cardiologist’s fee. Appeal on this ground dismissed.
- The Employment Tribunal had correctly included a Simmons v Castle  1 All ER 334 uplift. Beckford v London Borough of Southwark  IRLR 178 followed. Cross-appeal dismissed.
HIS HONOUR JUDGE DAVID RICHARDSON
- By a Judgment dated 30 December 2014 the Employment Tribunal sitting in East London (Employment Judge M Warren, Mrs Byrne and Mr Edwards) awarded to Dr Agnes Olayemi (“the Claimant”) compensation in the sum of £752,333 for sex discrimination, unfair dismissal and breach of contract. The award was made against Dr Okoreaffia (“the Respondent”); the Athena Medical Centre appears to be a name under which he carries on practice.
- A Preliminary Hearing before Kerr J on 28 October 2015 identified four questions for appeal: (1) whether the Employment Tribunal should have deducted 12.5% from various aspects of its reward by reason of an episode of PTSD some years prior to the events with which it was concerned; (2) whether the Employment Tribunal should have deducted payments made to the Claimant by way of housing benefit; (3) whether the Employment Tribunal should have awarded as part of the Claimant’s compensation a cardiologist’s fee, which she incurred in 2009; (4) whether the Employment Tribunal should have uplifted the compensation by 10% in accordance with the decision in Simmons v Castle  1 All ER 334.
- At the Preliminary Hearing the Claimant had the assistance of counsel, Ms Helen Wolstenholme, acting pro bono under the Employment Law Appeal Advice Scheme. The first three grounds were identified with her assistance. The fourth ground was advanced by the Respondent in a cross-appeal. The Claimant continued to represent herself following the Preliminary Hearing. She informed the Employment Appeal Tribunal that she was unwell due to a flare up of symptoms; and she did not attend the hearing. She did not withdraw the appeal. Miss Annette Gumbs, who appeared for the Respondent, applied to strike out the Claimant’s appeal on the basis that she had not lodged a skeleton argument. I declined to strike out the appeal; the arguments were identified at the Preliminary Hearing; and the Respondent was in a position to make submissions about them. At the time of determining the application I did not have up to date medical evidence from the Claimant; but I record that a GP’s letter confirming that she was unwell and unfit to attend the hearing was received at the Employment Appeal Tribunal on the day of the hearing.
- I therefore heard only from Miss Gumbs at the full appeal. I am grateful to her for the excellence of her submissions, in which she fulfilled her duty to place before the court the relevant statutory materials and authorities at the same time as putting forward well-judged arguments on the Respondent’s behalf.
- All the issues in this appeal are concerned with the award of compensation for sex discrimination. Such an award is made under section 124(2)(b) of the Equality Act 2010. Three further statutory provisions bear upon the way in which such compensation should be measured. These are section 124(6), section 119(2)(a), and section 119(4):
“124(6) The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by the county court or the sheriff under section 119.”
“119(2) The county court has power to grant any remedy which could be granted by the High Court –
(a) in proceedings in tort;
(4) An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).”
- The Claimant and the Respondent are both qualified General Practitioners in medicine. The Respondent has at all material times been principal of a practice in East London known as the Athena Medical Centre. The Claimant was employed by him from 1 July 2001 until her dismissal on 28 August 2008. Since that time she has been unwell with PTSD and depression to the extent that the GMC found her unfit to practice.
- By a Judgment dated 25 October 2010 the Employment Tribunal upheld the Claimant’s claims of sex discrimination, unfair dismissal and breach of contract. It found that the Respondent had subjected to her to a campaign of harassment designed to intimidate, humiliate and drive her out of the practice; see paragraph 397 of the Reasons for that Judgment.
- In August 2014 the Employment Tribunal held a hearing on the question of remedy. The Claimant represented herself. The Respondent was represented by counsel. For the purpose of this hearing a joint expert report had been obtained from a Consultant Psychiatrist, Mr Gupta. His report dated 17 June 2014 was before the Employment Tribunal together with a letter dated 25 July 2014 answering supplementary questions. Dr Gupta gave evidence, as did the Claimant and the Respondent.
- The Employment Tribunal’s Reasons run to some 43 pages. They are impressive and detailed. The Employment Tribunal awarded the Claimant £30,000 for injury to feelings (including £5,000 for aggravated damages); £21,875 for personal injury, that is for her psychiatric conditions; £244,963 for past losses; £216,923 for future losses; and amounts for unfair dismissal, and unlawful deduction from wages. The award was grossed up to allow for tax which would be payable on the compensation. Future loss was awarded on the basis that, following the Remedy Hearing, the Claimant would undergo therapy and would be fit for part-time work after 18 months and a role equivalent to that which she held with the Respondent after 30 months.
The 12.5% Deduction
- As I have said, Dr Gupta found that the Claimant developed the conditions of PTSD and depression. He said that he believed she became:
“… partially symptomatic during early to mid, 2008 and with an acute exacerbation in August 2008 when she presented at hospital with cardiac symptoms. …” (Report, page 17)
The Claimant had remained ill since that time.
- The Employment Tribunal made a 12.5% deduction from her awards for personal injury, past loss and future loss; losses which consisted mainly of past and future loss of earnings and pension loss, but which also included some specific past and future items. In all, the 12.5% deduction amount to some £67,430 (to which also grossing up would have applied).
- The Claimant had suffered a previous episode of PTSD consequent upon a problem with neighbours. Dr Gupta in his report described the previous episode as follows:
“8.1. Dr Olayemi consulted her GP in May 1997, with complaints of tearfulness, feeling fearful, with nightmares and symptoms of anxiety. She attributed these symptoms to nuisance phone calls, threats, verbal abuse and damage to her property caused by her neighbours. She attended for a follow up appointment in December 1997 and described on going symptoms over the previous months and that she had installed cameras following a further event where her car windscreen had been smashed. The purpose of the visit being “just wanted it all documented”. The GP recorded “stress/anxiety/features of depression. Is taking it to court”. Dr Olayemi next attended her GP in March 1998 and reported that the harassment had continued and that the police and law agencies were involved. With respect to her symptoms, she reported reduced sleep, flashbacks and recurrent thoughts triggered for example when she saw the police. The GP suggested behaviour therapy. The next attendance was in June 1999, when it is recorded that the problems with the neighbours “reignited by legal documents. Recurrence of nuisance calls.” She was provided with a sick certificate. Dr Olayemi next attended her GP in August 1999 and requested a referral to the Post Traumatic Stress service at the Maudsley, as she wanted to be excused from the court appearance. There was a further attendance at her GP in May 2000. There are no records with reference to further interventions until in May 2002, with symptoms of nightmares and a proposal to refer Dr Olayemi to the PTSD service at the Maudsley Hospital. A review of her notes indicates that this referral did not progress beyond the referral stage and Dr Olayemi was discharged back to the GP in June 2002.
8.2. I did not have access to notes for the period June 2002 – September 2008. Dr Olayemi confirmed that she was not registered during this period and remained well having recovered in her mental health after the neighbours moved out.”
- Dr Gupta was asked to deal in his report with the relevance of her previous illness to her current condition. He said the following:
“It is my opinion that Dr Olayemi, in all likelihood, suffered with a Post Traumatic Stress Disorder during the period 1999-2002. I believe she recovered from this condition spontaneously. The previous history of PTSD will have left her predisposed. Furthermore the trauma she experienced then (namely harassment) in some respects was comparable to traumatic experience that have preceded her current presentation. I consider the previous history of PTSD will have contributed to the tune of 10-15% towards the causation of the present episode.” (Report, page 17)
- Later, when being asked for a prognosis for the future, Dr Gupta said the following:
“… However in the longer term Dr Olayemi will remain vulnerable to the development of PTSD in excess of at least 30% (15% pre-existing vulnerability and 15% additional vulnerability consequent upon this episode) over and above that of any other adult of her age following exposure to traumatic events of a comparable nature. …” (Report, page 21)
- Later again, when being asked his opinion on the cause of the Claimant’s ill health, he said:
“It is my opinion that, but for the events at work, it is unlikely that Dr Olayemi would have become ill. It is also my opinion that the additional difficulties that she has endured whilst dealing with other matters with the PCT, the GMC and the Health Ombudsman have only served to complicate and maintain her presentation. It is also my view that, as set out in item 8.1, the pre-existing history of post traumatic stress disorder will have contributed by way of a predisposition towards the causation.” (Report, page 22)
- The Employment Tribunal gave the following reasons for its deduction of 12.5%:
“142. Dr Gupta said at page 17 of his report, commenting on a previous episode of PTSD Dr Olayemi had suffered in 1999 – 2002:
“I consider the previous history of PTSD will have contributed to the tune of 10 – 15% towards the causation of the present episode”
- The Respondent suggest that the Claimant’s compensation should be reduced 12.5% to reflect this observation that 10 to 15% of her illness is has been [sic] caused by her pre existing condition.
- If it had been a case of Dr Olayemi being vulnerable because of the previous episode, the Respondent would have to take his victim as he found her and we would make no reduction. However, Dr Gupta is clear, the previous PTSD contributed to the causation of this latest episode and so a reduction must be applied to the compensation to reflect that and 12.5% is in our view the appropriate percentage to apply, given the range suggested by Dr Gupta. A reduction of 12.5% will be made. That reduction relates to the losses caused by the illness, not the injury to feelings.”
- The Claimant challenges this deduction. Her argument, when she had the benefit of an ELAAS representative at the Preliminary Hearing, was summarised by Kerr J in the following way:
“13. … It is arguable that the 12.5 per cent ought not to have been applied in reduction of that amount and indeed other amounts dealt with elsewhere in the Decision, since it may be the case that the condition of the Appellant ought to have been identified as one in which the tortfeasor must take his victim as he finds her; rather than, properly analysed, this being a case of dual causation where two competing causes contribute to a condition or injury.
- … it seems to me that that is an arguable point and that the application of a 12.5 per cent reduction to that and other figures in the Tribunal’s award was arguably wrong. I note that the other aspects of the award that were subject to that reduction included matters such as incurring of costs and proceedings against the General Medical Council, which, arguably, were either incurred or not incurred. …”
- On behalf of the Respondent Miss Annette Gumbs accepts the proposition that a tortfeasor must take his victim as he finds her; she further accepts the proposition that if two tortfeasors separately contribute to what is on the facts an indivisible injury they are both bound to compensate the victim in full. She submits, however, that the Employment Tribunal was entitled to conclude that the injury to the Claimant was divisible and that the Respondent’s responsibility was to be assessed at 12.5%. Certainly, she says, this approach was justified as regards past and future loss of earnings. She has taken me helpfully through authorities which bear on this question: running from Dingle v Associated Newspapers Ltd  QB 162 at pages 188 to 189; Hatton v Sutherland  IRLR 263 CA at paragraph 37; Dickins v O2 plc  IRLR 58 CA at paragraphs 42 and 46; Thaine v London School of Economics  ICR 1422 EAT at paragraph 18; and BAE Systems (Operations) Ltd v Konczak  IRLR 676 EAT at paragraphs 33 to 41.
- Although there is a degree of tension between these cases, the essential principles are not in doubt. The Claimant must prove that the Respondent’s wrongdoing was a material cause of her psychiatric condition. If she does so the Respondent must take her as he finds her; it is no defence for him to say that she would not have suffered as she did but for a susceptibility or vulnerability to that kind of psychiatric condition. The Employment Tribunal will award compensation for the psychiatric condition, although it may discount the compensation to take account of any risk that she may in any event have suffered from the psychiatric condition to which she was vulnerable. That will depend on the chance that she would have suffered some other cause – presumably harassment or similar – to trigger her condition, and also on the seriousness of that cause.
- It is open to the Respondent to show that there was another material cause for the Claimant’s psychiatric condition – that is a cause going beyond mere vulnerability or susceptibility. Even so it is not a defence for the Respondent to say that there was another material cause for her psychiatric condition unless the resultant harm is truly divisible. If, however, the resultant harm is truly divisible the Tribunal concerned must estimate and award compensation for that part of the harm for which the Respondent is responsible. In so doing it will apply the tortious measure of damage: it will identify the harm for which the Respondent is responsible and award compensation for that harm, as opposed to the harm which would have occurred in any event. These propositions – including the propositions concerning divisibility – are not unique to claims arising out of a psychiatric condition.
- As this analysis shows, the Employment Tribunal should always take account of any existing vulnerability or any divisible cause when it awards compensation. In the former case it will make allowance for the chance that the Claimant would at some point have suffered the psychiatric condition in any event. In the latter case it will not award compensation for any harm which would have occurred in any event by reason of the other cause. How the Employment Tribunal takes account of such a factor will depend on the case.
- There is no rule in such cases that the Employment Tribunal should make a blanket percentage reduction in the award. In some circumstances – such as those which obtained in Thaine v London School of Economics  ICR 1422 EAT – it may be appropriate. In that case the Claimant suffered from illness due to several causes operating in the same or a similar time frame, and a reduction of 60% was appropriate. But in other cases it may be quite inappropriate. The Employment Tribunal must always consider what a Claimant has lost by reason of the wrongdoing of the Respondent in the light of the specific facts of the case.
- I think what I have said above is basic principle. In the light of Miss Gumb’s argument I will add a little more on the question of divisibility. It is helpful to cite a passage from Devlin LJ in Dingle at pages 188 to 189:
“This conclusion appears to me to be in accordance with, and indeed to exemplify, a fundamental principle in the law of damage. Where injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it. As between the plaintiff and the defendant it is immaterial that there are others whose acts also have been a cause of the injury and it does not matter whether those others have or have not a good defence. These factors would be relevant in a claim between tortfeasors for contribution, but the plaintiff is not concerned with that; he can obtain judgment for total compensation from anyone whose act has been a cause of his injury. If there are more than one of such persons, it is immaterial to the plaintiff whether they are joint tortfeasors or not. If four mean, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and is detained in hospital and loses a month’s wages, each wrongdoer is liable to compensate for the whole loss of earnings. If there were four distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants. It is essential for this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law. If, for example, a ship is damaged in two separate collisions by two wrongdoers and consequently is in dry dock for a month for repairs and claims for loss of earnings, it is usually possible to say how many days’ detention is attributable to the damage done by each collision and divide the loss of earnings accordingly.”
- It is, therefore, clear in principle that when there are competing causes for an injury a Court or Tribunal must consider the question of divisibility: both whether the injury is divisible and how it may be divided between the causes. The two questions go together and are essential elements of the reasoning.
- The passage which I have quoted from Dingle also seems to me to indicate a common sense approach to divisibility. It is more likely that an injury will be held to be indivisible if the competing causes are closely related to the injury and it is difficult to separate out their consequences. Each case will depend on the evidence; the principles are the same where the injury is psychiatric but such is the complexity of the human mind that it may, in practice, be difficult to separate out the impact of different causes. This is why the application of the principles to psychiatric injury may not be straightforward: see the discussion in Konczak at paragraphs 34 to 39. But in each individual case the exercise must be undertaken, as Judge Hand QC observed in that case.
- I turn to the Employment Tribunal’s reasoning. In this case the Claimant plainly established that the Respondent’s wrongdoing was a material cause of her psychiatric condition. This being so, it was no defence for the Respondent to show that she would not have suffered as she did but for a susceptibility or vulnerability to that psychiatric condition.
- There was certainly evidence before the Employment Tribunal that the Claimant was vulnerable or predisposed to suffer from PTSD by virtue of the earlier episode. But I do not think this evidence could possibly have justified a blanket reduction in the compensation of the kind which the Employment Tribunal made. If the Respondent had not harassed her some other trigger would have been required to cause her to relapse into illness. No other trigger was suggested to be in play at the relevant time. It is difficult to see why her immediate loss of earnings should be reduced at all, still less by 10-15%. But it would have been open to the Employment Tribunal to have made some reduction in some items of her loss.
- The Employment Tribunal found, however, that – above and beyond susceptibility or vulnerability – there was another cause of her psychiatric condition. This it described as “the previous history of PTSD” (paragraph 142) or “the previous PTSD” (paragraph 144). I have been unable to reconcile this finding in paragraph 144, apparently based on Dr Gupta’s evidence, with other features of his report. He said that the Claimant had recovered spontaneously from PTSD in 2002; that it will have left her “predisposed”; and that but for the events at work it is unlikely she would have become ill. These findings point to a vulnerability or predisposition to PTSD in 2008. I cannot see from the Employment Tribunal’s reasoning why it considered that there was another cause for PTSD in 2008.
- I am conscious that the Employment Tribunal based its findings on Dr Gupta’s evidence – including, it seems, his oral evidence. I cannot, however, see why it reached the conclusion it did; and I would for that reason alone have been inclined to allow the appeal and remit the matter for reconsideration. But there is a further difficulty with the Employment Tribunal’s reasoning.
- In this case the Employment Tribunal did not expressly address the question whether the Claimant’s injury was divisible between causes and how. Assuming that it found the injury to be divisible (which is implicit in its finding, but not reasoned) it would then have had to consider how the injury was divisible in this case. The Employment Tribunal would have had to consider: what in practice did the episode of PTSD in 1999-2002 cause, and what did the Respondent’s unlawful conduct cause?
- If it had considered this question expressly, I do not see how it could have concluded that there should be a 12.5% deduction in respect of all the Claimant’s losses. As Kerr J observed, some of the losses do not seem susceptible of division in this way at all: a very obvious example would seem to be the cost of an advertisement for which the Respondent refused to pay. But the same would also seem to be true of the claim for past loss of earnings. It does not follow that because the earlier episode contributed to the tune of 10% to 15% to the current episode, that the loss of earnings would have been any less: indeed it seems very unlikely that the Claimant would have been unwell in 2008 but for the Respondent’s wrongdoing. Whether the earlier episode would ever have had any practical effect would seem to depend on whether, but for the Respondent’s wrongdoing, the Claimant would ever again have been subjected to harassment or a similar cause. I do not think that Dr Gupta was considering that question.
- It may be that the Employment Tribunal made an across the board proportionate reduction in reliance on Thaine v London School of Economics  ICR 1422 EAT. In that case, however, there were several causes all operating at the same time upon the Claimant’s state of health. A proportionate reduction across the board was appropriate. Even if the Employment Tribunal was justified in concluding that there were concurrent causes for the Claimant’s illness, the circumstances were very different from those in
- For these reasons I conclude that the question which the Employment Tribunal addressed in paragraphs 142 to 144 of its Reasons must be remitted for reconsideration. I have every confidence in remitting it to the same Employment Tribunal. It will need to consider whether and if so why it can really be said that there was some independent material cause of the episode in 2008, or whether in reality the Claimant was merely vulnerable to harassment; and if there was some material independent cause, whether and how it was divisible. It should take care before making any kind of across the board percentage reduction.
- As a general rule when a matter is remitted the Employment Tribunal is expected to address it without the receipt of further evidence, relying upon the existing evidence (including of course its notes of oral evidence) and submissions from the parties. Miss Gumbs has suggested that it should be open to the Employment Tribunal to adduce additional written evidence from Dr Gupta having directed him more specifically and expressly on the issue. I will not rule out an application to the Employment Tribunal – I am conscious that I do not know precisely what it was which led the Employment Tribunal to make its finding of causation as opposed to predisposition – but I would caution the Employment Tribunal to take care before it concludes that further evidence is required. I have quoted key passages from Dr Gupta’s reports from which it ought to be possible for the Employment Tribunal to reach a conclusion; I would add that assessing the question whether the Claimant will be unfortunate enough ever to be subject to harassment or some similar trigger event in the future is not a medical question in itself.
- The Employment Tribunal deducted housing benefit received by the Claimant from her award of loss of earnings. It did so in reliance on the passage in a textbook which, in turn, relied on the Court of Appeal decision in Clenshaw v Tanner  EWCA Civ 1848. That decision applied the reasoning in Hodgson v Trapp  1 AC 807 to housing benefit: see paragraphs 24 to 32 (Kennedy LJ) and 34 to 37 (Chadwick LJ). In Hodgson v Trapp Lord Bridge had said (page 819):
“… If, in consequence of the injuries sustained, the plaintiff has enjoyed receipts to which he would not otherwise have been entitled, prima facie, those receipts are to be set against the aggregate of the plaintiff’s losses and expenses in arriving at the measure of his damages. …”
For that reason he held that statutory benefits paid in consequence of an injury should be deducted. Later he said (page 823):
“… To allow double recovery in such a case at the expense of both taxpayers and insurers seems to me incapable of justification on any rational ground. …”
- The Claimant’s argument that housing benefit should not be deducted is based on a decision of the Employment Appeal Tribunal to which the Court of Appeal was not referred in Clenshaw. This is Savage v Saxena  IRLR 182 EAT – a case concerned with unfair dismissal rather than sex discrimination.
- In that case the Employment Appeal Tribunal (Judge Hargrove QC presiding) decided by a majority that housing benefit should not be deducted from a personal injury award. Two reasons were given. The first reason was that Hodgson v Trapp could be distinguished: see paragraph 13. I do not think that part of the reasoning can survive the decision of the Court of Appeal in Clenshaw. Where compensation is assessed on the tortious basis, as it is for claims under the Equality Act 2010, the reasoning in Clenshaw must be decisive. It would be possible to take a different view in an unfair dismissal claim but I can see no good reason for doing so. Accordingly on this point I consider that I should follow Clenshaw and treat Savage as effectively overruled.
- There was, however, a second independent reason for the Employment Appeal Tribunal’s conclusion in Savage. The Employment Appeal Tribunal found that there was a power to “claw” back any sum which had been received by way of an award for unfair dismissal. Hence there would be no double recovery. The Employment Appeal Tribunal went carefully through the statutory provisions then applicable in order to reach that conclusion.
- In principle, if benefits received by a Claimant can be recovered by the state from a subsequent award of damages, those benefits ought not to be deducted from his award as well. Thus in Berriello v Felixstowe Dock & Railway Co  ICR 467 an Italian seaman had received payments from a fund administered by the Italian state for which he would be accountable in the event of an award of damages. It was held that these benefits were not deductable from his damages. Hodgson v Trapp was distinguished. Bingham LJ said:
“… This is not, I think, a situation which has yet arisen in the case of British statutory welfare benefits but if it did I would expect the court to sanction recovery from the wrongdoer and repayment of the welfare benefit. …” (Page 470F)
- I must therefore consider whether it is the position today that housing benefit may be clawed back, and, if so, whether this “claw back” applies only in relation to compensation for unfair dismissal or whether it applies to any extent to compensation for sex discrimination. Miss Gumbs has referred me to the current statutory provisions governing housing benefit: she accepts that they are very similar to those which were considered in Savage. I consider that she is right.
- The starting point is a wide definition of “earnings” contained in regulation 35 of the Housing Benefit Regulations 2006. This provides:
“35. (1) Subject to paragraph (2), “earnings” means in the case of employment as an employed earner, any remuneration or profit derived from that employment and includes –
(b) any payment in lieu of remuneration except any periodic sum paid to a claimant on account of the termination of his employment by reason of redundancy;
(c) any payment in lieu of notice or any lump sum payment intended as compensation for the loss of employment but only in so far as it represents loss of income;
(g) any award of compensation made under section 112(4) or 117(3)(a) of the Employment Rights Act 1996 (remedies and compensation for unfair dismissal);
- These words plainly encompass compensation for unfair dismissal: (see paragraph 1(g)) but they include all lump sum payments intended as compensation for the loss of employment. I think this must include a payment of compensation for loss of earnings as a component of compensation for sex discrimination. (I note in passing that such an award is taxable upon a definition in slightly broader terms in the Income Tax (Earnings and Pension) Act 2003 – see Chief Constable of Northumbria Police v Erichsen  UKEAT/0027/15 at paragraph 77).
- The other steps in the analysis of the Employment Appeal Tribunal in Savage continue to be features of housing benefit legislation. The obligation to notify a change of circumstances (see paragraph 17 in Savage) is now found in Regulation 88(1) of the 2006 Regulations. Provision for overpayment to be recoverable is now found within Regulation 100(1). The Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 provide the ability to revise an original decision to award housing benefit at any time; this includes the period after housing benefit payments have ceased. A revised determination has effect so that where there was no entitlement to income during the material period but the income is subsequently paid in respect of that period the income is treated as having been received during the material period. See Regulation 79(6) of the 2006 Regulations, which provides as follows:
“(6) Where the change of circumstances is that income, or an increase in the amount of income, other than a benefit or an increase in the amount of a benefit under the Act, is paid in respect of a past period and there was no entitlement to income of that amount during that period, the change of circumstances shall take effect from the first day on which such income, had it been paid in that period at intervals appropriate to that income, would have fallen to be taken into account for the purposes of these Regulations.”
- Accordingly, I concluded that the position remains as in Savage: housing benefit is liable to be clawed back from an award of compensation for unfair dismissal or an award of compensation for sex discrimination which includes loss of earnings.
- Miss Gumbs points out that there is no active mechanism by which the local authority would be informed of the receipt of an award unless the individual remains on benefits. I do not, however, consider that this alters the legal position.
- This brings me to Miss Gumb’s argument concerning the availability of a personal injury trust. She submits that at the time of the Remedy Hearing it was possible for the Claimant to arrange her affairs in such a way that there was no recovery available to the local authority in respect of sums made in consequence of personal injury. Indeed, she would not have to report such sums to the local authority. She has taken me through the complex provisions of the housing benefit legislation: see in particular Regulation 42(1)(ii)(b) (in respect of notional income), Regulation 49(1)(ii)(b) in respect of notional capital and Schedule 5 paragraph 14 (in respect of calculation of capital). These make special provision for “a trust derived from a payment made in consequence of a personal injury”. The Claimant gave no evidence on the question whether she intended to set up such a trust; if she intended to do so she could avoid the “claw back” and there would be double recovery. It was for the Claimant to adduce evidence on this question; in the absence of it she did not establish that there would be double recovery, so that the housing benefit was liable to be deducted. Miss Gumbs sought to draw a parallel with Firth v Geo Ackroyd Junior Limited  PIQR Q4.
- I reject this submission. Firstly, as we have seen the effect of the Housing Benefit Regulations is to bring about a retrospective reassessment in respect of a past period. During that past period there was no personal injury trust. Once the Claimant receives a payment the operation of those provisions would be triggered. No income or capital will have been protected by a personal injury trust in relation to that period. Secondly, I do not think that the assessment of the Claimant’s damages can or should depend upon a future choice unless it could be said that she would be failing in her duty to mitigate her loss via making the choice in question. I do not think that could possibly be said in respect of the creation of a personal injury trust in respect of past loss of earnings. The award in respect of past loss of earnings is not to provide for her future but to compensate her for what she has already lost: I can see no rational basis upon which she could be required to put this into a personal injury trust.
- Accordingly the appeal on this ground is allowed; the deduction of housing benefit from loss of earnings was not appropriate. The second, independent, reason given for the decision in Savage appears to me to be a good reason and I consider that I should follow Savage on that point, which was not considered in Clenshaw. The award should be increased by £52,337 together with an appropriate amount for grossing up. This appears to be a further 40%: that is to say £20,934. I will give judgment in this amount, with liberty to apply if there is any issue about the grossing up figure.
- This ground of appeal relates to a particular cardiologist’s fee incurred in 2009: see paragraph 94 of the Employment Tribunal’s Reasons. It is argued that the Claimant had symptoms representing anxiety and stress in 2008 and had been referred to cardiology in March 2009: see Dr Gupta’s report. But Miss Gumbs points out that Dr Gupta did not set out any cardiology findings in 2009 or explain the reason for the consultation in question. She submits that some evidence was required to link the cardiology consultation with the findings of discrimination, and there was none. This is the point which the Employment Tribunal made in paragraph 94 of its Reasons. It seems to me to raise no question of law for the Employment Appeal Tribunal; and this ground must be dismissed.
Simmons v Castle Uplift
- The Employment Tribunal awarded compensation which included an uplift in line with Simmons v Castle  1 All ER 334. Miss Gumbs submits that the Employment Tribunal was not entitled as a matter of law to award this uplift.
- This question has been the subject of disagreement at the level of the Employment Appeal Tribunal. The cases and arguments are summarised most recently in Beckford v London Borough of Southwark  IRLR 178 EAT. I propose to deal with this matter briefly, because I think no useful purpose would be served by a further detailed exposition at Employment Appeal Tribunal level at the arguments on this point. I propose to follow Beckford for two reasons. Firstly, it is the most recent decision in the Employment Appeal Tribunal; it is the most detailed in its review of the existing authorities; and I am satisfied that good order requires that it should be followed at Employment Appeal Tribunal level unless and until there is an authoritative decision of the Court of Appeal. Secondly, I agree with it. The statutory provisions which I set out at the beginning of this Judgment are a clear direction to award compensation which corresponds to the amount which could be awarded by the County Court. Although the costs regime in the Employment Tribunal remains significantly different from that in the Civil Courts, the effect of the Jackson reforms has been to align them to a degree. I cannot see, in those circumstances, why the uplift should be denied to Claimants in Employment Tribunal proceedings.
- I note from the Judgment of Kerr J that there are enforcement proceedings in respect of the Employment Tribunal’s Judgment. I make it clear that although the result of this appeal is to remit an issue to the Employment Tribunal that can only increase the judgment. Nothing in this Judgment, or in the remission to the Employment Tribunal, should delay or stand in the way enforcing the existing amount.
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