Jennifer Benjamin v The Markfield Project

The appeal and cross-appeal in these proceedings raise questions as to the appropriate scope of an appeal against a reconsideration decision.

In giving this judgment I refer to the parties as the claimant and respondent, as below. This is the full hearing of the claimant's appeal against the reconsideration judgment of Employment Judge Bedeau, sitting at Watford on 14 August 2019, by which the claimant’s application for reconsideration of the earlier remedy judgment of 8 March 2019 was refused. The claimant’s appeal against the reconsideration judgment was permitted to proceed on amended grounds after a hearing under rule 3(10) Employment Appeal Tribunal Rules 1993 (as amended) by His Honour Judge Auerbach, who also permitted the respondent to pursue a cross-appeal against that judgment. The claimant appeared in person before the Employment Tribunal (“ET”) but, since the rule 3(10) hearing, has benefitted from pro bono representation by counsel in the appeal proceedings; Dr Kerr has represented the respondent’s interests both before the ET and the EAT.

In addressing the appeal and cross-appeal, it has not proved possible to obtain a record of the ET’s original liability judgment and it seems that no written reasons for that judgment were ever sought. The relevant background recounted in this judgment has, therefore, been taken from the parties’ pleaded cases and from the ET’s subsequent remedy and reconsideration judgments.

The respondent provides support services for people with learning disabilities; at the relevant time, it had around 36 employees. From September 2013 until 27 June 2016, the claimant was employed by the respondent as a part-time support worker, working 25 hours per week. As at the time of the termination of her employment with the respondent, the claimant was 53; she had graduated in 2012 with a Bachelor of Arts degree in Special Needs.

The claimant resigned from her employment on 27 June 2016. She subsequently brought ET proceedings, claiming she had been constructively unfairly dismissed and had suffered race discrimination and disability discrimination by virtue of the respondent’s failure to make reasonable adjustments (the claimant has dyslexia related learning difficulties and suffers difficulty processing information). Those claims were upheld by the ET following a full merits hearing from 15-17 October 2018, before EJ Bedeau and two lay members. A whistleblowing claim also pursued by the claimant was, however, dismissed.

The ET listed the case for a further hearing to determine remedy, making a number of case management orders for that hearing. Specifically, the claimant was ordered to serve:

The remedy hearing took place before the ET on 16 January 2019. The claimant gave evidence and the ET also heard from a witness for the respondent. In relation to her claim of lost earnings, the ET recorded the claimant’s evidence as follows:

In its judgment, sent to the parties on 8 March 2019, the ET addressed the question of compensation for pecuniary losses as follows:

On the question of injury to feelings, the claimant’s evidence (accepted by the ET) was that:

The ET further recorded that, after the liability hearing, the respondent had apologised to the claimant for the way she had been treated, emphasising that this had not been intentional (the ET had found the treatment was unconscious race discrimination) and that changes had since been made.

The ET determined that the appropriate award for injury to feelings was £4,000 (plus interest), reasoning as follows:

Following receipt of the ET’s remedy judgment, on 22 March 2019, the claimant emailed the ET requesting a reconsideration of its decision as:

The claimant also sent a six page document to the ET, further setting out the basis of her application, accompanied by documents that the ET described as:

In the covering document, the claimant explained that she had had assistance (from her local Citizens Advice Bureau) in compiling her schedule of loss but had found that, together with the requirement to serve a witness statement, very demanding. Her disability had placed her at a disadvantage and she had little time to “also send additional information regarding accessing documented evidence”. The claimant said that, on 16 January 2019, she had emailed to the ET and the respondent “evidence of the jobs that I had applied for since 2016” but the ET “internet was down” and the ET was “unable to print of [sic] the evidence that I had submitted”. At today’s hearing, it has been explained to me that the claimant sent various emails through to the respondent on the day of the remedy hearing but those attending that hearing were not aware of the emails until after the hearing had taken place.

Returning to the reconsideration application, the claimant pointed out that she had told the ET that on 27 June 2016 (straight after she had resigned) she had claimed Employment Support Allowance (“ESA”) and when this had ended on 23 October 2016 she had transferred to Job Seekers Allowance, which required that she was actively seeking work – something she considered the ET had failed to take into account. As for her decision to enrol on the PGCE course, the claimant pointed to the fact that she had been unable to work at the time, due to her hand injury, and was then aged 53 and had sought to widen her job prospects and her long-term financial independence.

The claimant also addressed the ET’s injury to feelings award, asking that this be reconsidered, explaining that (as a result of her disability) she had not been “sure what the question was” and had found “giving evidence perplexing and confusing”.

In considering the claimant’s application on the papers, the ET recorded that the further material relied on by the claimant showed:

The ET concluded that:

In the circumstances, the ET considered there was no reasonable prospect of its remedy judgment being varied or revoked and it refused the claimant’s application for reconsideration.

The claimant's appeal was permitted to proceed to a full hearing on the following grounds:

In support of her appeal, the claimant submits: (i) in its remedy judgment, the ET had treated the claimant’s decision to re-train as dispositive of the question whether she had acted reasonably; (ii) it further appeared that the ET had not been taken to the relevant legal principles on mitigation (and the burden of proof) and re-training; (iii) the application for reconsideration – drafted by a litigant in person with a learning difficulty – had sought to explain that the claimant had enrolled on the PGCE course in order to improve her career prospects and because she was at that time unable to work due to a hand injury, the claimant had not sought to challenge the finding that she had in fact enrolled on such a course but the ET had focussed on the question whether there was any reasonable prospect of this finding being varied, failing to consider the claimant’s submission regarding the reasonableness of her enrolment on the course; (iv) the ET’s remedy judgment further demonstrated that it had treated the claimant as bearing the burden of proof; (v) as for the reconsideration application relating to the injury to feelings award, this had either been ignored or the ET had failed to provide any reasons to explain why it had rejected this; in either event, this was an error of law.

For its part, the respondent points out that the claimant’s case at the remedy hearing had been put on the following basis:

As for the issues raised by the grounds of appeal, the respondent contends: (i) it was trite law that a claimant bears the burden of proving their losses and the respondent must prove any failure to mitigate, but in the present case, the claimant had made assertions which she could not substantiate about losses that she said flowed from the dismissal; (ii) although the ET did not refer to the principle that a respondent must prove a failure to mitigate, that was not necessarily fatal (see Cooper Contracting Ltd v Lindsey UKEAT/0184/15) and in this case the respondent had adduced that evidence and the claimant had been unable to refute it - ultimately the question whether or not the claimant had mitigated her losses was dependent upon the facts of the case (see Hibiscus Housing Association v McIntosh UKEAT/0534/08); (iii) it had been the claimant’s case that she had undertaken the PGCE as a step in mitigation taken as a result of a failure to find any other work but that had proved to be unsustainable under challenge and in the face of the respondent’s evidence; (iv) as for the injury to feelings award, the claimant’s schedule of loss had failed to specify any parameters in this regard but she had been given full opportunity to give evidence on the point and the ET had encouraged her to expand upon that evidence in respect of the proportion of her stress and anxiety attributable to the matters determined in her favour at the liability stage.

The respondent was permitted to pursue a cross-appeal in respect of the ET’s reconsideration judgment on two grounds, explained as follows:

In fairness, I should record that Dr Kerr did not seek to pursue either ground of cross-appeal with any vigour at the hearing before me.

For the claimant it is said that the cross-appeal should be dismissed as a matter of principle: the respondent had not appealed against the remedy judgment nor had it made any application for reconsideration. In any event: (i) the ET had found as a fact that the claimant had the benefit of ESA from 27 June 2016 - if there was any point to be made about that, it had been open to the respondent to do so at the remedy hearing; (ii) in any event, the letter in question did not show that the claimant made a claim prior to her (constructive) dismissal, merely that she was awarded the benefit from the day she left employment (claims could be backdated for up to three months; paragraph 1 of schedule 4 Social Security (Claims and Payments) Regulations 1987/1968); (iii) in relation to the injury to feelings award, this (a) could only go to the remedy judgment and did not arise out of the reconsideration judgment, and (b) failed to engage with the fact that the ET had reduced the award to take into account other matters impacting upon the claimant’s feelings.

The ET’s power to reconsider its judgments is provided by rule 70 schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”), which provides that the ET:

By rule 72(1), it is provided that an application for reconsideration shall be refused:

In interpreting or exercising its power of reconsideration, the ET will be bound to seek to give effect to the overriding objective, as provided at rule 2 ET Rules:

The purpose of reconsideration (then called a “review”) was addressed by the EAT (Browne-Wilkinson J (as he then was) presiding) in Trimble v Supertravel Ltd [1982] ICR 440, as follows:

A restrictive approach to the ET’s power to reconsider (or review) its decisions had been taken in the earlier EAT ruling in Flint v Eastern Electricity Board [1975] ICR 395, and this was further affirmed by the decision in Lindsay v Ironsides Ray & Vials [1994] ICR 384, where the EAT considered that the power should be limited to cases involving:

Other divisions of the EAT considered, however, that the ET’s power of reconsideration should not be so restricted. Thus in M Shortfall t/a Auction Centres v Carey UKEAT/351/93, the EAT dismissed a challenge to a review judgment (under what was then rule 10(e) of the relevant ET Rules), which had addressed a statutory provision that should – but was not – have been drawn to the attention of the ET at the earlier hearing; the EAT observing:

Similarly, in Williams v Ferrosan Ltd [2004] IRLR 608, the EAT held that where a mistake had been made by the ET due to oversight by both parties (in that case, whether the claimant would attract a tax liability on future earnings), it would be open to the ET (and, indeed, preferable) to correct its error by way of review. See also Sodexho v Gibbons [2005] ICR 1647 EAT.

The case-law in this regard was reviewed by the EAT in Newcastle City Council v Marsden [2010] ICR 743 EAT (Underhill P (as he then was) presiding). Recognising that the broad statutory discretion otherwise allowed should not become:

Where an application for reconsideration is made on the basis of evidence that was not adduced at the original hearing, the relevant test is that provided by the Court of Appeal in Ladd v Marshall [1954] EWCA Civ 1, namely that the evidence in question: (i) could not, with reasonable diligence, have been adduced before the original hearing; (ii) is such that it would probably have had an important influence on the result of the case; and (iii) is credible.

Where an ET entirely fails to deal with an issue clearly set out in the application for reconsideration, this can itself give rise to an error of law, see Hossani v EDS Recruitment Ltd [2020] ICR 491, EAT at paragraph 61. More generally, as a decision on a reconsideration application is a judgment, within the meaning of rule 1(3) ET Rules, the provisions of rule 62 apply such that there is a requirement that the ET shall give reasons for its decision on any disputed issue; as, however, the EAT (HHJ Auerbach presiding) explained in Shaw v Intellectual Property Office UKEAT/0186/20 and UKET/0187/20 at paragraph 64:

As for the scope of an appeal against a reconsideration judgment, it is important that this is distinguished from an appeal against the original judgment; as HHJ David Richardson observed in AB v Home Office UKEAT/0363/13:

In some instances, however, the EAT has taken the view that the interests of justice might permit an appeal to be allowed against a decision on a reconsideration application notwithstanding the fact that the real complaint was against the original judgment; see, for example, the decision of HHJ Peter Clark in Tamborrino v Kuypers UKEAT/0483/05:

In an unfair dismissal claim, section 123 Employment Rights Act 1996 provides (so far as relevant for present purposes):

In reviewing the case law relevant to the question of mitigation, the EAT in Cooper Contracting Ltd v Lindsey UKEAT/0184/15 laid down the following guidance (see paragraph 16 of that judgment, summarised at paragraph 19 Singh v Glass Express Midlands Ltd UKEAT/0071/18):

Considering the question of mitigation in circumstances where a claimant has decided to undertake a course of study, in Hibiscus Housing Association Ltd v McIntosh UKEAT/0534/08, the EAT emphasised the fact-sensitive nature of the ET’s assessment:

The ET’s power to make an award to compensate a claimant for injury to feelings arising from unlawful discrimination is provided by section 124 Equality Act 2010. Whether the award in question relates to loss of earnings or to non-pecuniary losses, however, parliament has made clear that it is for an ET to determine questions of remedy; the ET will be best placed to make the requisite assessment and the EAT should be slow to interfere awards made by ET on remedy.

In considering the claimant’s application for reconsideration, the question for the ET was whether such reconsideration was necessary in the interests of justice. At the preliminary stage, under rule 72(1) ET Rules, the ET was bound to refuse the application if it took the view that there was no reasonable prospect of the original decision being varied or revoked. As for what might be necessary in the interests of justice, the ET was required to seek to deal with the case fairly and justly, in accordance with the overriding objective. It thus needed to have regard to the interests of both parties, and to what might legitimately be expected from the fair and just conduct of the litigation, which would include the principle that there should be finality in that litigation. The ET’s decision represented the judicial determination of the legal dispute between the parties at that stage, it was not an invitation to engage in further dialogue regarding the conclusions it had reached. If the application for reconsideration thus amounted to an attempt to re-argue a point – to have a “second bite at the cherry” - there would be good reason for concluding that such reconsideration would not be in the interests of justice and that there was no reasonable prospect of the original decision being varied or revoked (see the discussion in Newcastle City Council v Marsden [2010] ICR 743 EAT, supra).

In the present case, the application for reconsideration was put on two bases: (1) the claimant had been disadvantaged (at least in part, for reasons relating to her disability) in presenting the documentary evidence relevant to her attempts to mitigate her loss of earnings; (2) the claimant’s disability had meant that she was unable to properly answer questions, and explain her case, relating to injury to feelings. In addressing the first part of the application, the ET effectively treated this as an application to rely on fresh evidence. Although it did not expressly refer to the test in Ladd v Marshall [1954] EWCA Civ 1, the ET can be seen to have assumed (in the claimant’s favour) that the new documentation – on which the claimant sought to rely as demonstrating that she had not acted unreasonably in seeking to mitigate her loss – could not have been adduced at the original hearing and was credible. It is apparent, however, that it was satisfied that that new evidence would not have had an important influence on its decision; rather, the ET concluded that the documentation in question supported the finding it had already made. As for the second matter addressed by the application (the compensation awarded for injury to feelings), however, there is nothing to indicate that the ET engaged with the matters raised by the claimant in this respect.

The claimant’s first ground of appeal addresses the first of the points raised by the reconsideration application: the ET’s conclusion on remedy on the issue of mitigation. It is not suggested that the ET erred in the view it formed in relation to the new evidence relevant to mitigation; rather, it is contended that the ET repeated the mistake it had made in its remedy judgment, by effectively imposing a burden of proof on the claimant – requiring that she demonstrate that she had acted reasonably, when it was for the respondent to demonstrate that she had acted unreasonably – and by treating her decision to undertake her PGCE as dispositive of the issue of mitigation.

Even if I assume (in the claimant’s favour) that the ET had erred in the approach it adopted to the question of mitigation in its original remedy judgment, two difficulties arise from the claimant’s appeal in this respect. First, the objections thus identified relate to what are said to be errors in the original judgment; they do not arise from the reconsideration judgment under appeal. Secondly, these were not objections that the claimant had herself raised by way of her application for reconsideration but are points that were first taken at the rule 3(10) hearing, before the EAT.

For the claimant, it is said that the ET can be seen to have made the same error in its reconsideration decision – both in relation to the burden of proof and to the issue of re-training – as in its earlier remedy judgment. Although the claimant might not have expressly identified these points in her reconsideration application, she was a litigant in person, with a learning disability, and had done sufficient to raise these issues when she had explained why she had made the decision to undertake the PGCE course.

I note that the ET was plainly aware of the difficulties faced by the claimant as a litigant in person with a learning disability and it is apparent that reasonable adjustments had been put in place to assist her in the presentation of her case below. Even with that awareness, however, I cannot see that the ET could properly be criticised for failing to read the claimant’s application for reconsideration as raising questions as to the burden of proof or the approach to be adopted when considering re-training as a form of mitigation. In oral argument, when asked to identify how these issues had been raised by the claimant’s application, Ms Sheridan accepted that this presented some difficulty. This is a difficulty that arises from the fact that these were points only identified during the appeal process; they formed no part of the claimant’s reconsideration application. Thus, even if it could be argued that it would have been in the interests of justice for the ET to have re-visited its approach to the burden of proof and to the issue of re-training at the reconsideration stage (although it might have been objected that these were matters more suited to the appeal process), I cannot see that the ET erred in failing to undertake a task that had not been identified in the application it was seeking to address.

In my judgment, the first ground of appeal must therefore fail. This is not a case where the ET might be said to have taken an unduly restrictive approach to its power of reconsideration (the criticism made of the ET’s decision in Tamborrino v Kuypers UKEAT/0483/05); the objection raised is one that was not identified in the application before the ET and there is no proper basis for concluding that it did anything other than reach a permissible decision on that application insofar as it addressed the issue of mitigation.

Before leaving the first ground of appeal, I should again make clear that I have considered this challenge on the assumption that the claimant is correct in her criticisms of the ET’s approach to the question of mitigation in its original remedy judgment. Although not a matter that is strictly before me, for completeness, I should clarify that I am not persuaded that the ET did err in the ways the claimant suggests. Although the ET spoke of what the claimant “had to demonstrate” in terms of mitigation (see paragraph 44 of its remedy judgment, set out at paragraph 8 above), it was not in dispute that the respondent had adduced evidence of the availability of a number of apparently suitable vacancies for which the claimant had not applied. The real issue in this case was whether the respondent had thereby established that the claimant had acted unreasonably given that she had instead decided to try to improve her career prospects by undertaking a further course of study. That was a question of fact for the ET (see Hibiscus Housing Association Ltd v McIntosh UKEAT/0534/08), and I am not persuaded that any proper basis of challenge has been demonstrated such as to justify the EAT’s interference with the ET’s conclusion in this regard.

Turning then to the second ground of appeal, as the respondent observes, the appropriate level of an award of compensation for injury to feelings was a matter that the ET was best placed to assess. The criticism made in this regard does not, however, relate to the ET’s assessment of the claimant’s injury to feelings at the remedy stage; rather, the claimant complains that the ET erred in its reconsideration judgment by failing to engage with this aspect of her application for reconsideration.

There is no dispute that the claimant’s application had raised the issue of the injury to feelings award as a matter that the ET should reconsider; there is equally no dispute that the ET failed to address this in its reconsideration judgment. For the respondent it is said, however, that there was no reasonable basis on which the ET could have found that it was in the interests of justice to reconsider this aspect of its remedy judgment; the failure to expressly address the point should not be seen as fatal to the ET’s decision to dismiss the reconsideration application.

On this point, however, the claimant’s appeal is not focussed on the original remedy decision but on the ET’s subsequent failure to address the matters she had raised in her application for reconsideration. Whether understood as an application to rely on fresh evidence (effectively the claimant’s account of how her disability had adversely impacted her ability to give evidence of the hurt she had suffered) or as a complaint that she had (because of the effects of her disability – something that might not have been fully apparent to the ET at the time) not received a fair hearing, the claimant was not putting her case as a form of perversity challenge to the original award, but was saying that there were factors that meant she had not had a fair opportunity to present her evidence on this point. It might have been open to the ET to reject the claimant’s objections in this regard but, on its face, the application raised questions that potentially fell within the scope of the ET’s power of reconsideration (see Trimble v Supertravel Ltd [1982] ICR 440, supra). By failing to address this issue, the ET erred in law (Hossani v EDS Recruitment Ltd [2020] ICR 491).

The respondent contends that, in any event, it is apparent that this aspect of the application would fall to be dismissed on its merits: at the remedy hearing (as in the proceedings more generally), the ET had made reasonable adjustments so as to enable the claimant to present her best evidence. In particular, I am told that the ET assisted the claimant in clarifying that more of the injury to feelings that she had suffered was attributable to the matters for which the respondent had been held liable than might initially have seemed to be the case from her evidence. That may be correct, but I am not in a position to be able to assess whether the claimant’s reconsideration application raised yet further matters that could be seen to have impacted upon the fairness of the remedy hearing. This was a matter that the ET needed to address but unfortunately overlooked. On this ground, I am therefore bound to allow the appeal and remit this aspect of the reconsideration application to now be considered by the ET.

I can take the points raised by the cross-appeal more shortly.

On the first point, although the respondent’s response to the claimant’s application for reconsideration raised a question as to whether the start date for her ESA benefit contradicted the claimant’s evidence at the liability hearing, it had made no application itself in this regard; the ET cannot be said to have erred in failing to consider an application that had not been made. In any event, as Dr Kerr acknowledged in oral argument, there was a lack of substance to the point made by the respondent in this respect. The evidence referenced in its response to the reconsideration application was a letter that merely confirmed the period for which the claimant had been awarded ESA, going back to 27 June 2016 (the day she had left her employment). Given that there is no dispute that a claim for ESA could be backdated for up to three months, the letter in question does no more than confirm the claimant’s evidence to the ET; there is no contradiction.

As for the second ground of cross-appeal, this is an attempt to challenge the ET’s award of compensation for injury to feelings on perversity grounds. This is misconceived for a number of reasons. First, the challenge does not arise from the reconsideration judgment that is the subject of these appeal proceedings: that judgment does not address the injury to feelings award at all. Second, it is a challenge that could only relate to the ET’s original remedy judgment, but there is no appeal before me in that regard and the respondent did not seek to make any application for reconsideration in respect of that decision that might have made it a relevant issue in respect of the reconsideration judgment. Third, the objection raised does not begin to cross the high threshold set for a perversity challenge: the ET was plainly aware that this was a case of unconscious discrimination and a failure to make reasonable adjustments; it had taken into account the other matters that might also have impacted upon the claimant’s feelings at this time and had carried out a careful and balanced assessment before arriving at the award made under this head. There is no proper basis for saying that the level of award was not one that was open to the ET on the material before it.

For the reasons provided, I therefore dismiss the appeal on ground (1) but allow the appeal on ground (2) and, insofar as it relates to the question of injury to feelings, remit the claimant’s application for reconsideration to the ET. The cross-appeal is dismissed in its entirety.