Last Updated on December 9, 2020 by LawEuro
Neutral Citation Number: [2018] EWCA Civ 640
Case No: A2/2016/1295
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE SHANKS
UKEAT/0320/15/DM
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 28/03/2018
Before:
LORD JUSTICE BEAN
and
LORD JUSTICE LEGGATT
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Between:
ABERTAWE BRO MORGANNWG UNIVERSITY LOCAL HEALTH BOARD
Appellant
– and –
MORGAN
Respondent
– – – – – – – – – – – – – – – – – – – – –
– – – – – – – – – – – – – – – – – – – – –
Julian Allsop (instructed by Hugh James Solicitors) for the Appellant
Rachel Crasnow QC (instructed by Royal College of Nursing) for the Respondent
Hearing dates: 14 February 2018
– – – – – – – – – – – – – – – – – – – – –
Judgment
LORD JUSTICE LEGGATT:
1. Almost six years after this employment claim was begun, questions are raised on this appeal about the effect of section 123 of the Equality Act 2010 and whether the employment tribunal was entitled to find that it was just and equitable to extend the time under that section for bringing proceedings.
Factual background
2. The claimant, Ms Annie Morgan, commenced employment with the Abertawe Bro Morgannwg University Local Health Board (the “Board”) in January 2007 as a psychiatric nurse therapist. For many years the claimant has suffered from a depressive illness, though the severity of her illness has fluctuated and her symptoms have for long periods been effectively controlled by medication. Because of her illness, the claimant was absent from work from 17 July 2010 (apart from two days in July 2011) until she was dismissed by the Board on 15 December 2011. It is not in dispute that at all relevant times as a result of her illness the claimant was a disabled person within the meaning of section 6 of the Equality Act 2010.
History of the proceedings
3. On 14 March 2012 the claimant began proceedings before an employment tribunal making claims of discrimination on the grounds of disability and unfair dismissal. In a judgment given on 28 March 2013, the tribunal dismissed certain claims including the claim of unfair dismissal but upheld other claims, two of which remain relevant for the purpose of this appeal. First, the tribunal found that the claimant had been subjected to harassment relating to her disability by the Board’s HR advisor, Ms Laura Keighan. This harassment consisted in (a) laughing when the claimant tried to talk about her rights as a disabled person at a meeting to review her long-term sickness on 8 February 2011, and (b) ignoring and failing to investigate a grievance raised by the claimant making allegations of bullying and other mistreatment. Second, the tribunal found that the Board had a duty under section 20 of the Equality Act 2010 to make reasonable adjustments for the claimant’s disability by redeploying her to another role and that the Board failed to comply with this duty. In relation to these claims (and others which were upheld), the employment tribunal found that it was just and equitable to allow the claims to be brought after the end of the three month period specified in section 123(1) of the Equality Act.
4. The Board appealed to the Employment Appeal Tribunal, which by an order dated 18 February 2014 allowed the appeal in part. In particular, Mr Justice Langstaff, giving the judgment of the EAT, found that the employment tribunal had misunderstood a letter written by an occupational health doctor, Dr Tidley, dated 15 August 2011 and that, properly understood, the letter demonstrated that, when she was assessed by Dr Tidley on 9 August 2011, the claimant was unfit for work in any capacity. That remained the position at the time of the claimant’s dismissal. Accordingly, in so far as it related to the period from August 2011, the claim based on a failure to make adjustments could not be sustained. The EAT allowed the appeal on this issue and remitted it to the employment tribunal to decide whether or not the claim was well-founded in relation to the period between April and August 2011.
5. The EAT also found that, in exercising its discretion to extend time under section 123 of the Equality Act, the employment tribunal had failed to consider each claim separately, had not identified or taken account of the reasons why the claimant had failed to bring each claim in time or sooner than she did, and had taken into account an erroneous perception of the strength of the reasonable adjustments claim as a result of the tribunal’s misreading of Dr Tidley’s report. Accordingly, the question whether it was just and equitable to extend time in respect of each relevant claim was also remitted to the tribunal for reconsideration.
6. The matters remitted to the employment tribunal were reconsidered at a further hearing (though, in accordance with the EAT’s directions, no new evidence was received). In a judgment promulgated on 20 March 2015, the employment tribunal found that the claim based on a failure to make adjustments, although now confined to the period from April to August 2011, was well-founded and that it was just and equitable to extend the time for bringing that claim and also the claim of harassment by Ms Keighan.
7. The Board again appealed to the Employment Appeal Tribunal. In a judgment handed down on 8 March 2016, His Honour Judge Shanks (sitting alone) dismissed the appeal. The Board then applied for, and was granted, permission to pursue a further appeal to this court, on which it has re-argued the same grounds. For the reasons which follow, none of those grounds in my view has merit.
Ground 1: the reasonable adjustments claim
8. The first ground of appeal is, in essence, that the employment tribunal’s conclusion that the reasonable adjustments claim is well-founded is inconsistent with a finding made by the tribunal that the time for bringing the claim began to run “by no later than the beginning of August 2011”. It was argued by Mr Allsop for the Board that the logical consequence of that finding is that there was no breach of the duty to make reasonable adjustments and that the tribunal should therefore have dismissed the claim.
9. As set out in section 20 of the Equality Act, the duty to make reasonable adjustments for disabled persons comprises three requirements, of which the first is relevant for present purposes. This is a requirement:
“where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”
In its second judgment the employment tribunal found that the disadvantage to the claimant of being unable to work in her existing role could have been overcome by offering her a different role and that, on the balance of probabilities, there were other suitable roles available during the period from April to August 2011 which the Board could have offered the claimant. The tribunal found that in these circumstances there had been a failure by the Board to comply with its duty under section 20 of the Equality Act.
10. Section 123 of the Equality Act, which specifies time limits for bringing employment claims, provides so far as relevant that:
“(1) … proceedings on a complaint … may not be brought after the end of—
(a) the period of 3 months starting with the date of the act to which the complaint relates, or
(b) such other period as the employment tribunal thinks just and equitable.
…
(3) For the purposes of this section—
(a) conduct extending over a period is to be treated as done at the end of the period;
(b) failure to do something is to be treated as occurring when the person in question decided on it.
(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something—
(a) when P does an act inconsistent with doing it, or
(b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”
11. The claim in this case is of failure to do something – namely, to comply with the duty under section 20 to make reasonable adjustments by redeploying the claimant to another role. To determine when the failure is to be treated as occurring, it was therefore necessary for the tribunal to apply subsection (4). There is no finding that the Board made any positive decision not to make the required adjustment or did an act inconsistent with making the adjustment. It simply failed to comply with its duty. Applying subsection (4)(b), the failure to comply with the duty is therefore to be treated as occurring on the expiry of the period in which the Board might reasonably have been expected to make the adjustment. The tribunal’s finding with regard to when that period expired is contained in the following passage of its judgment:
“9.6 The respondent would have a reasonable time in which to deal with the process of making adjustments. However at some point it would become clear to the claimant probably by June/July 2011 that the respondent was restricting its approach to redeployment. Firstly by not using the redeployment register and secondly by not searching outside the mental health directorate. Further it would have been clear to the claimant that the respondent was not taking up Dr Tidley’s offer to evaluate roles for the claimant.
9.7 Therefore in terms of reasonable adjustments we judge that time begins to run by no later than the beginning of August 2011. On that basis the claimant’s claim should have been presented by 31st October 2011.”
12. For the Board, Mr Allsop argued that the date referred to in section 123(4)(b), when applied to a claim alleging failure to comply with the duty to make reasonable adjustments, is not only the date when time begins to run for the purpose of calculating the relevant time limit but is also the date when a breach of the duty first occurs. He submitted that the effect of section 123(4)(b) is to afford the employer a reasonable opportunity to make the reasonable adjustments that the law requires before the employer is held to be in breach of section 20. Thus, the finding of the tribunal that time began to run by 1 August 2011 was also a finding that no breach of duty occurred before that date. As the tribunal proceeded on the basis, when the claim was remitted, that the claimant was too ill to work at all from 1 August 2011 onwards (see para 9.8.1 of the judgment), it follows that there can have been no breach of the duty to make reasonable adjustments and the tribunal should therefore have dismissed the claim.
13. In my view, this argument is flawed because it erroneously treats a provision which is dealing only with the question of when time begins to run for the purpose of calculating the time limit for bringing proceedings as if it were determining when a breach of duty first occurs. In some provisions which specify time limits for bringing proceedings the date on which time begins to run is stated to be the date on which the cause of action accrued – indicating that this is also the earliest date on which the claimant has a right to the relief claimed. An example is section 2 of the Limitation Act 1980, which establishes the time limit for bringing an action founded on tort. However, not all time limits are fixed by reference to the date on which the claimant’s cause of action accrued.
14. Section 123(3) and (4) determine when time begins to run in relation to acts or omissions which extend over a period. In the case of omissions, the approach taken is to establish a default rule that time begins to run at the end of the period in which the respondent might reasonably have been expected to comply with the relevant duty. Ascertaining when the respondent might reasonably have been expected to comply with its duty is not the same as ascertaining when the failure to comply with the duty began. Pursuant to section 20(3) of the Equality Act, the duty to comply with the requirement relevant in this case begins as soon as the employer is able to take steps which it is reasonable for the employer to have to take to avoid the relevant disadvantage. It can readily be seen, however, that if time began to run on that date, a claimant might be unfairly prejudiced. In particular, the claimant might reasonably believe that the employer was taking steps to seek to address the relevant disadvantage, when in fact the employer was doing nothing at all. If this situation continued for more than three months, by the time it became or should have become apparent to the claimant that the employer was in fact sitting on its hands, the primary time limit for bringing proceedings would already have expired.
15. This analysis of the mischief which section 123(4) is addressing indicates that the period in which the employer might reasonably have been expected to comply with its duty ought in principle be assessed from the claimant’s point of view, having regard to the facts known or which ought reasonably to have been known by the claimant at the relevant time. This is further supported by the decision of the Court of Appeal in Kingston upon Hull City Council v Matuszowicz [2009] EWHC Civ 22; [2009] ICR 1170. In that case the Court of Appeal considered the effect of the predecessor provision (which was in materially identical terms) to section 123(4) of the Equality Act in relation to a claim based on failure to make reasonable adjustments by finding alternative employment for the claimant. On the facts, the duty (and hence the failure to comply with it) was said to have arisen by, at the latest, August 2005 and to have continued until 1 August 2006, when the claimant’s employment ended (see para 25). Although the Court of Appeal did not find it necessary to reach any conclusion about the date on which time began to run, Lloyd LJ (with whose judgment the other members of the court agreed) considered that the relevant date may have been 28 July 2006 – observing that, at any rate during the period of April to July 2006, the employer was representing to the claimant that the question of his possible redeployment was being taken seriously (see paras 28-29). This illustrates, first of all, that the date by which the employer might reasonably have been expected to comply with a duty to make reasonable adjustments for the purpose of the test in what is now section 123(4)(b) of the Equality Act may be different from the date when the breach of duty began. Secondly, the approach of Lloyd LJ supports the view that the date by which the employer might reasonably have been expected to comply with the duty should be determined in the light of the facts as they would reasonably have appeared to the claimant – including in that case what the claimant was told by his employer.
16. In the present case, although its reasoning might have been more clearly expressed, I think it apparent that the employment tribunal approached the matter correctly in asking itself at what point it became clear or should have become clear to the claimant that the Board was not complying with its duty to make reasonable adjustments by looking for alternative suitable roles to which she could be redeployed. The tribunal found that this would probably have become clear to the claimant by June/July 2011. Although it was generous in those circumstances to find that the time for bringing a claim did not begin to run until 1 August 2011, it cannot be said that this was not a judgment which on the facts was open to the tribunal. Nor is there any inconsistency between that finding and the tribunal’s conclusion that the claim based on failure to make reasonable adjustments was well-founded. Although the tribunal did not identify the earliest date by which the Board could and should have offered to redeploy the claimant to a suitable alternative post, it found that on the balance of probabilities it is likely that there would have been a suitable role to which the claimant could have been redeployed during the period from April to the beginning of August 2011. Indeed, the tribunal’s discussion of the date by which the Board might reasonably have been expected to comply with its duty presupposes that the Board was failing to comply with its duty during the period under consideration. I therefore consider that the first ground of appeal is misconceived.
The just and equitable discretion
17. The Board’s other grounds of appeal all seek to challenge the decisions of the employment tribunal that it was just and equitable to extend the time for bringing (a) the claim based on a failure to make adjustments and (b) the claim alleging harassment by Ms Keighan. Before turning to those grounds, the following points may be noted about the power of a tribunal to allow proceedings to be brought within such period as it thinks just and equitable pursuant to section 123 of the Equality Act.
18. First, it is plain from the language used (“such other period as the employment tribunal thinks just and equitable”) that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corporation v Keeble [1997] IRLR 336), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi [2003] EWCA Civ 15; [2003] ICR 800, para 33. The position is analogous to that where a court or tribunal is exercising the similarly worded discretion to extend the time for bringing proceedings under section 7(5) of the Human Rights Act 1998: see Dunn v Parole Board [2008] EWCA Civ 374; [2009] 1 WLR 728, paras 30-32, 43, 48; and Rabone v Pennine Care NHS Trust [2012] UKSC 2; [2012] 2 AC 72, para 75.
19. That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are: (a) the length of, and reasons for, the delay and (b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).
20. The second point to note is that, because of the width of the discretion given to the employment tribunal to proceed in accordance with what it thinks just and equitable, there is very limited scope for challenging the tribunal’s exercise of its discretion on an appeal. It is axiomatic that an appellate court or tribunal should not substitute its own view of what is just and equitable for that of the tribunal charged with the decision. It should only disturb the tribunal’s decision if the tribunal has erred in principle – for example, by failing to have regard to a factor which is plainly relevant and significant or by giving significant weight to a factor which is plainly irrelevant – or if the tribunal’s conclusion is outside the very wide ambit within which different views may reasonably be taken about what is just and equitable: see Robertson v Bexley Community Centre t/a Leisure Link [2003] EWCA Civ 576; [2003] IRLR 434, para 24.
The employment tribunal’s findings
21. As mentioned earlier, one of the reasons why the EAT required the employment tribunal to reconsider whether it was just and equitable to extend time was that, in its first judgment, the tribunal had not addressed the question of why the claimant had not begun proceedings within the three month period prescribed by section 123 of the Equality Act or sooner than she did. There was no direct evidence from the claimant on this point. However, when the issue was remitted, the tribunal in its second judgment attached weight to the claimant’s ill-health and to the fact that, during the period prior to her dismissal, she was having to deal with periodic meetings to review her absence from work because of sickness and was also awaiting the outcome of a grievance process. The reasons given by the tribunal for concluding that it was just and equitable to extend time for bringing the reasonable adjustments claim until 14 March 2012 when the claim was presented, were as follows:
“9.8.6.1 The claimant is someone that would lose a good claim in circumstances where she had been very ill and had been embroiled in the respondent’s processes. The claimant was using her limited mental resources in coping with those processes whilst ill.
9.8.6.2 The respondent would suffer relatively little prejudice in evidential terms. A significant part of the delay in dealing with its own process was the responsibility of the respondent and not the claimant.
9.8.6.3 We do not consider that the support of the trade union in those circumstances is sufficient to unbalance the equation in the respondent’s favour.”
22. Similarly, in relation to the claim of harassment by Ms Keighan, the tribunal found that the claimant had “demonstrated an evidential basis upon which the tribunal can come to a conclusion as to her reason for not presenting her complaint until March 2012”. This evidential basis was said to include:
“17.1.1 The extent of the claimant’s illness as it developed up to her dismissal.
17.1.2 The attempts to resolve matters internally via the grievance process.
17.1.3 The delays in that grievance process some of which can be laid at the door of the respondent and are without explanation.
17.1.4 The state of the claimant’s health after her dismissal on 15 December 2011.”
The tribunal also took into account other matters – including its view that little prejudice was caused to the Board by the delay and what it considered would be the substantial prejudice to the claimant if she was unable to pursue a well-founded claim – in again reaching the conclusion that it was just and equitable to extend time.
Grounds 2 and 4: approach to the reasons for delay
23. It is convenient to take the Board’s second and fourth grounds of appeal together, as those grounds make an identical argument in relation to the tribunal’s decisions that it was just and equitable to extend time for bringing, respectively, the reasonable adjustments and harassment claims.
24. The Board’s argument is that the employment tribunal misdirected itself by “failing to place a burden” upon the claimant to satisfy the tribunal that it was just and equitable to extend time in her favour. The Board’s submissions in support of these grounds made it clear that the reference in this context to a “burden” upon the claimant was not to a burden of proof but to the need to satisfy the tribunal that it was just and equitable to extend time. This appeared to be conflated in the Board’s skeleton argument with an alleged requirement to satisfy the tribunal that there was a good reason for the failure to bring the claim in time. The thrust of Mr Allsop’s argument was that, in the absence of an explanation from the claimant as to why she did not bring her claim in time and an evidential basis for that explanation, the tribunal could not properly conclude that it was just and equitable to extend time.
25. I cannot accept that argument. As discussed above, the discretion given by section 123(1) of the Equality Act to the employment tribunal to decide what it “thinks just and equitable” is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard. Nor do I consider that the original decision of the EAT went any further than that. The error identified by Langstaff J, as I read his judgment, was that the tribunal had failed to give any consideration at all to the reason for the delay in bringing the claim and had therefore failed to have regard to a relevant factor. I agree, however, with HHJ Shanks in his judgment given on the second EAT appeal that Langstaff J was not “intending to suggest that if a claimant gives no direct evidence about why she did not bring her claims sooner a tribunal is obliged to infer that there was no acceptable reason for the delay, or even that if there was no acceptable reason that would inevitably mean that time should not be extended.”
26. It is plain that in its second judgment the employment tribunal did give consideration to the reasons why the claimant had not commenced proceedings until March 2012. The identification of those reasons and the weight to be given to them were matters for the tribunal. There was no requirement that it had to be satisfied that there was a good reason for the delay before it could conclude that it was just and equitable to extend time in the claimant’s favour.
Grounds 3 and 5: decisions to extend time
27. The Board’s third and fifth grounds of appeal are also linked. In those grounds the Board has argued that the tribunal’s decisions that it was just and equitable to extend time for bringing the reasonable adjustments and harassment claims, respectively, were perverse and/or based on matters which the tribunal improperly took into account but should not have taken into account.
28. In relation to the adjustments claim, the Board has criticised the reliance placed by the tribunal on the process which followed a grievance raised by the claimant on 19 May 2011. At para 9.8.3 of its second judgment the employment tribunal said about this:
“9.8.3.1 Whilst the grievance did not relate directly to the question of making reasonable adjustments, it was clearly connected to the claimant’s sickness absence.
9.8.3.2 The claimant’s complaints were about the respondent’s treatment of her in relation to her disability.
9.8.3.3 In our judgment this would have made it very difficult for the claimant to disentangle the specific elements of this particular process from those matters dealt with in the absence reviews.
9.8.3.4 That in turn would make it difficult (leaving aside for the present the fact that she was represented) for the claimant to realise that a reasonable adjustments claim needed to be made as there still seemed to be an attempt to resolve matters internally.”
The tribunal went on (at para 9.8.4) to recognise that the claimant was represented by her trade union, but said:
“However those representing the claimant would have had to recognise the limitations caused by the claimant’s health; e.g. the claimant was unable to engage in appeal meetings with the respondent.”
29. Mr Allsop submitted that there was no evidence before the employment tribunal which entitled the tribunal to infer that it was difficult for the claimant to disentangle the specific elements of the grievance process from the matters dealt with in her absence reviews and in consequence to realise that a reasonable adjustments claim needed to be made. He submitted that there was likewise no evidence that entitled the tribunal to find at para 9.8.6.1 of the judgment (quoted at paragraph 21 above) that the claimant was “using her limited mental resources in coping with the [Board’s] processes whilst ill.” Mr Allsop also criticised the tribunal for discounting the fact that the claimant was being assisted by her trade union during the relevant period on the footing that the claimant’s trade union representatives “would have had to recognise limitations caused by the claimant’s health”. Again, he submitted that there was no evidential basis for this finding.
30. I would agree that the significance attached by the tribunal to the grievance process and the inference drawn about the difficulty of disentangling that process from a claim based on failure to make adjustments seem tenuous. But I am unable to say that they are so fanciful as to fall outside the wide margin of judgment afforded to the tribunal in evaluating the evidence. The tribunal received a great deal of documentary and oral evidence bearing on the declining state of the claimant’s mental health at the relevant times. The tribunal was therefore well placed to judge the impact or likely impact of the claimant’s illness on her thinking and decision-making abilities. The basic point which I understand the tribunal to have accepted and taken into account in reaching its conclusion was that the claimant’s ill-health provided some explanation for her delay in bringing proceedings. I have no doubt that this was a judgment which it was properly open to the tribunal to make.
31. In relation to the claim of harassment by Ms Keighan, the Board’s grounds of appeal again criticise the tribunal for attaching weight to the grievance process. It was further argued that the claimant’s ability to lodge a written grievance on 19 May 2011, only a little more than three months after the meeting on 8 February 2011 at which the first matter found to amount to harassment occurred, indicates that the claimant could also have lodged an employment claim by then. A particular criticism was also made of para 15.1.4 of the tribunal’s judgment, which refers to an allegation that the claimant was given erroneous advice by Ms Keighan about the redeployment register – a matter which Mr Allsop submitted was irrelevant to the question whether it was just and equitable to extend time for bringing the harassment claim. The latter paragraph, however, was part of a summary set out by the tribunal of arguments made on behalf of the claimant, and there is nothing to indicate that the tribunal accepted or attached any weight to that particular argument in reaching its conclusion.
32. At para 17.3.4 of its judgment the tribunal stated:
“We accept that pursuing the grievance alone is not a reason for us to conclude that time should be extended. However, where the claimant is properly pursuing internal processes with a real intention that matters be resolved and with delay caused by ill-health and by the respondent for reasons which are not explained, those are matters properly to be put in the balance.”
I do not think it unreasonable for the tribunal, in assessing the extent to which the claimant’s delay in bringing her claim should be regarded as culpable, to have attached some weight to the fact that, throughout the period of delay, the claimant was pursuing an internal process which could have resolved many of her complaints, albeit not the particular complaint of harassment by Ms Keighan which the tribunal upheld. I have already indicated that the tribunal’s assessment of the claimant’s declining state of mental health was a matter to which it was entitled to give weight. While I agree with HHJ Shanks that the decision to extend time in relation to the harassment claim was even more generous to the claimant than the decision in relation to the reasonable adjustments claim, I also agree with him that no basis has been shown for interfering with the tribunal’s exercise of its discretion. In particular, the tribunal’s conclusion cannot be characterised as perverse nor as based on matters which it was not entitled to take into account.
Conclusion
33. For these reasons, I conclude that: (1) there is no inconsistency between the tribunal’s finding that time did not begin to run for bringing the reasonable adjustments claim until 1 August 2011 and its conclusion the claim was well-founded; and (2) the tribunal did not make any error of law in concluding that it was just and equitable to extend time for bringing that claim and the claim alleging harassment by Ms Keighan. I would accordingly dismiss the appeal.
Endnote
34. At the end of his judgment in the EAT, HHJ Shanks expressed the hope that the parties can now rapidly proceed to a remedies hearing. He said that it seemed to him “just unacceptable that a case like this should take more than four years to reach a resolution.” With that sentiment one can only agree, while noting that the Board’s unsuccessful appeal to this court has added another two years to the inordinate length of these proceedings. At any remedies hearing the only questions will be what compensation the claimant is entitled to receive for (a) her treatment by Ms Keighan and (b) the Board’s failure to make reasonable adjustments for her disability by finding a suitable alternative role for her in the period between April and the end of July 2011.
35. The treatment by Ms Keighan found by the tribunal to have amounted to harassment is plainly at the lower end of the scale that applies in awarding compensation for injury to feelings. On the face of it, the appropriate amount of compensation for the failure to make reasonable adjustments would be any difference between (a) the amount of sickness pay which the claimant in fact received and (b) the amount of pay which she would have received if she had been redeployed to another job from the date when such redeployment would have taken place if the Board had complied with its duty to make adjustments until the date (taken by the tribunal to be 1 August 2011) when the claimant became too ill to work at all. Any such amount is likely to be very modest. It was therefore a matter of surprise to be told at the hearing of this appeal that the amount of compensation which the claimant is seeking is some £450,000. This sum is apparently claimed on the footing that, if the claimant had been redeployed to another suitable post between April and August 2011, she would not have suffered the deterioration in her condition which led to her being unfit to work in any capacity thereafter and would instead have continued in her employment into the far future.
36. Such a claim is in principle possible but it is necessary to keep in mind that the burden of proof is on the claimant to prove her loss. Given the complex aetiology of depressive illness, it is difficult to envisage how it could conceivably be established by evidence that, if only the claimant had been moved to another post at some point between April and August 2011, her illness would not have progressed as it in fact did. At this stage of these protracted proceedings a sense of reality is required to bring them to an appropriate conclusion.
Lord Justice Bean:
37. I agree.
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