Niekrash v South London Healthcare NHS Trust

An employment tribunal is not required to identify every possible factor supporting a head of loss. In its adversarial jurisdiction, it ordinarily decides only issues and factors clearly put before it. Failure to consider a factor not advanced at the remedy hearing cannot amount to an error of law. Whether conduct warrants aggravated damages is an evaluative question for the tribunal that heard the evidence. An appellate court will not substitute its view unless the decision is perverse, requiring an overwhelming case that no reasonable tribunal could have reached it.

The claimant, a consultant urologist, succeeded before an employment tribunal on a protected-disclosure detriment claim and received compensation for injury to health, loss of reputation and private-practice income. The tribunal refused aggravated damages. On a rule 3(10) hearing, Judge Richardson allowed a full appeal only on whether the tribunal had failed to consider or give adequate reasons for rejecting aggravated damages. The Employment Appeal Tribunal subsequently dismissed that appeal in its order of 7 March 2012, reported as [2012] UKEAT 0252_11_0703. The claimant renewed applications concerning both EAT orders for extensions of time and permission to appeal. The central issues were whether the delays should be excused and whether the aggravated-damages challenge disclosed an error of law.

1. Disposition. Time was extended for challenging the EAT order of 7 March 2012, but permission to appeal against that order was refused. Time was not extended for challenging Judge Richardson’s order of 6 June 2011, and permission to appeal against that order was consequently refused.
2. Issues before the employment tribunal. The tribunal administered an essentially adversarial jurisdiction. It ordinarily had to decide the issues and factors clearly put before it at the remedy hearing, rather than investigate every possible head of loss or evidential factor. Under section 21 of the Employment Tribunals Act 1996, the EAT’s jurisdiction was confined to alleged errors of law. It could not be an error of law for the tribunal to omit factors that had not been advanced in support of aggravated damages.
3. Aggravated damages. The tribunal correctly directed itself that aggravated damages required conduct which was high-handed, malicious, insulting or oppressive. Whether the conduct met that description was an evaluative question for the tribunal which heard the evidence. The Court of Appeal would not second-guess that assessment unless it was perverse.
4. Perversity and reasons. A perversity challenge required an overwhelming case, namely a decision to which no reasonable tribunal could have come: see Yeboah v Crofton [2002] IRLR 634. The tribunal had found no malice, although it regarded the treatment as wholly inappropriate, and had expressly addressed the absence of an apology. Its conclusion that aggravated damages were not justified could not realistically be characterised as perverse. The absence of a factor-by-factor analysis did not establish an error of law where the correct test had been applied and the overall evaluative conclusion was apparent.

• Court of Appeal (Civil Division): Mummery LJ refused permission on the papers. Rimer LJ, on renewal, extended time for the proposed appeal against the 7 March 2012 EAT order but refused permission; he refused both extension and permission concerning the 6 June 2011 order.
• Employment Appeal Tribunal: On 7 March 2012, His Honour Judge Birtles and members dismissed the appeal limited to aggravated damages: [2012] UKEAT 0252_11_0703.
• Employment Appeal Tribunal: On 6 June 2011, His Honour Judge Richardson, sitting alone under rule 3(10), permitted a full appeal only on the aggravated-damages issue and otherwise affirmed dismissal of the claimant’s appeal.