United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS DEOK-JOO RHEE (of Counsel) Instructed by: Messrs Patwa Solicitors 25 Abbey Road Bearwood Smethwick West Midlands B67 5RA
For the Respondent	MR PAUL BROWN (of Counsel) Instructed by: Messrs Bevan Ashford Solicitors 35 Colston Avenue Bristol BS1 4TT


 


JUDGE J BURKE QC

The Issues

1. Mr Singh was, in 1997, and is now employed by the University Hospital Birmingham NHS Trust, which we shall call "the Trust", as a Porter. In 1997 he was off work for about a year after major brain surgery. In November 1997 he was able to return to work. He was at work only for about 5 days before he went off work again as a result, to put it neutrally for the moment, of what happened between himself and his Manager, Mr Mortimer. He has not since returned to work. He claimed that his employers, the Trust, had been guilty, in several respects, of race discrimination.
2. The Employment Tribunal sitting at Birmingham and chaired by Mr S Ahmed, in their first decision in this long drawn out piece of litigation, promulgated on 12 May 2000, held that during those five days Mr Singh was racially discriminated against in that, in broad terms, after his long absence his manager had failed to make arrangements to enable him to return to his previous place and duties of work on grounds of his race.
3. The Tribunal rejected Mr Singh's complaint that an internal investigation into his complaints about his treatment had itself been tainted by discrimination. There was no appeal against that decision. Unhappily, a further fifteen months or so past before the Tribunal, consisting of the same members as those who decided the issues of liability, could hold a remedies hearing.
4. The Tribunal's decision on remedies was promulgated on 15 October 2001. They awarded Mr Singh £4,641.84 representing six months' loss of earnings to approximately the end of May 1998, £5,000 by way of compensation for injury to feelings including psychiatric symptoms of illness and about £900 by way of interest, producing a total award of £11,546.15. They declined to make an award of aggravated damages or aggravated compensation.
5. Mr Singh issued a lengthy and detailed Notice of Appeal against the remedies decision. At the Preliminary Hearing of his appeal all of his grounds of appeal were dismissed, save for two, in respect of which Mr Singh was given permission to proceed to a full hearing of his appeal.
6. The two issues now raised by the appeal can be briefly stated. They are:

(1) Whether the Tribunal erred in law in its decision not to award aggravated compensation;

(2) Whether the Tribunal ought to have extended the duration of the period in respect of which compensation for loss of earnings was awarded beyond May 1998, to a date later in 1998, the preferred date in the submissions on behalf of Mr Singh being the beginning of September, on the basis that, until his internal grievance and the investigation of that grievance were fully disposed of and he had had time to prepare himself for a return to work thereafter, he could not be expected to return to work.

7. The Trust cross-appeal, also on two grounds. Firstly, they contend that the medical evidence indicated that only 80% of Mr Singh's symptoms in the relevant period were caused by the discrimination and therefore that his compensation, both for injury to feelings and for loss of earnings, should have been but was not reduced by 20% by the Tribunal. This issue was raised by the Trust by way of an application for a review which was rejected by Mr Ahmed alone in the third Employment Tribunal decision in this saga, promulgated on 7 December 2001.
8. Secondly, the Trust contend that, on the basis of the accepted evidence, the Tribunal erred in awarding compensation for loss of earnings for a period as long as 6 months and that they ought to have awarded such compensation for a period of 3 months only, or alternatively for somewhere between 3 and 6 months.
9. Thus, there are four separate issues which we have to decide. We propose to address, first, the aggravated compensation issue. We will then address the rival arguments as to whether the period in respect of which compensation was ordered was too short or too long. Finally, we will deal with the 20% reduction issue.

Aggravated Compensation

10. It is important at the outset to identify the principles which a Tribunal should apply in considering whether or not to make an award of aggravated compensation. The parties, through Miss Rhee, on behalf of Mr Singh, and Mr Brown, on behalf of the Trust, are, so far as we can see, entirely agreed as to what those principles are; we set them out briefly as follows:

(1) Aggravated compensation may be awarded in a discrimination case: HM Prison Service v Johnson [1997] ICR 275.

(2) However, they may only be awarded in a case in which it is established that the discriminator has acted in a high-handed, malicious, insulting or oppressive manner: Alexander v The Home Office [1998] IRLR 190.

(3) While any discrimination is offensive and regrettable and may be potentially very distressing, the requirements set out in Alexander involve some special element in the conduct of the discriminator which takes the case beyond the ordinary run of discrimination cases. The fact that there has been discrimination and that the victim has been upset or distressed or even injured in his health as a result of the discrimination is not of itself enough.

(4) It is a matter for the Tribunal on the facts of each case to decide whether, if the discriminator has acted in a high-handed, malicious, insulting or oppressive manner, the case is one in which aggravated compensation should be awarded.

(5) An award of aggravated compensation may, but need not be, included in the award for injury to feelings. It may be included, it may be separate: ICTS UK Ltd v Tchoula [2000] IRLR 643.

(6) Aggravated compensation may be awarded even though the injury to feelings award in the individual case is in what was described in Tchoula as the "lower category" and not the "higher category" of the two very broad categories described in that decision.

(7) An award of aggravated compensation should be compensatory, not punitive: Armitage v Johnson [1997] IRLR 162

11. It is to be noted that in HM Prison Service v Johnson the employee had been subjected to an 18 month campaign of racial harassment, involving exposure to humiliation, ostracism and other activities and that the employers had conducted themselves in such a way as to rub salt into the victim's wounds.
12. In Alexander v The Home Office, another Prison Service case, the employers had disseminated two reports or assessments of the employee in which he was described in lurid and plainly racially-orientated language.
13. In Tchoula the employers had deliberately, to use a description used in the judgment of the Employment Appeal Tribunal in that case, 'gone after' the employee and then put him through what was in effect a wholly sham disciplinary process.
14. These are illustrations of cases in which aggravated compensation has been awarded. Cases of that type are of course not the only types of case in which such an award may be made; and we are certainly not suggesting that, in order to obtain such an award it is necessary to show facts which are similar to or as grave as the facts in those cases. Those are perhaps very plain cases. It is for the Tribunal, considering each individual case on its own facts, to decide, firstly, whether the threshold set out in Alexander has been passed, secondly, if so, whether to make an award and, thirdly, if an award is to be made, how much that award should be.
15. The Tribunal in the present case set out their conclusions as to aggravated compensation at paragraph 20 of the remedies decision, where they say:

20 "We make no award in respect of aggravated damages. That particular head of claim is not vigorously pursued but we have nevertheless considered it. We do not consider that the discriminatory treatment was "high handed, malicious, insulting or oppressive"."

16. Miss Rhee firstly submits that the Tribunal's conclusion that the discriminatory treatment of Mr Singh in this case was not "high handed, malicious, insulting or oppressive", that is to say had not passed the threshold established in Alexander at which an award of aggravated compensation may be considered, contradicted the Tribunal's own findings in the liability decision and that those findings were such that the Tribunal, had they had regard to them, could only have concluded that the threshold established in Alexander had been passed. She accepts, fairly, that she has to put the case that high because otherwise, of course, the issue would have been one of fact for the Tribunal to consider.
17. Miss Rhee has referred us to the following findings in the liability decision, in the general context that, of the two versions of what occurred between Mr Singh and his Manager, Mr Mortimer, in particular on 19 November which was the day on which the Tribunal focused most of its attention, the Tribunal expressly preferred Mr Singh's version, as set out in paragraph 27 of the liability decision.
18. Firstly, Miss Rhee points to paragraph 13 of that decision, in which the Tribunal set out that, according to Mr Singh, on 19 November, before Mr Singh went to see Mr Mortimer, he saw the porters' team leader, Mr McGarry (who was in a role which we take to be that of a foreman or a charge-hand), who said to him:

13 "We will put you on call and I have heard that you have to be on light duties. We have got some fucking sick porters on light duties."

19. However, Mr Brown has submitted, and we accept, that there is no indication in the decision of a finding by the Tribunal that Mr McGarry, who disputed that he had used those words, actually said what Mr Singh alleged that he had said. Equally, there is no finding that he did not. There is no finding one way or the other as to the issue between Mr McGarry and Mr Singh in relation to what Mr McGarry said; and Miss Rhee has very fairly accepted that that is so. It follows that there is no finding, in relation to this part of the case, which Miss Rhee can rely upon as one which the Tribunal should have had in mind in considering whether or not this was a case in which to award aggravated compensation.
20. Next Miss Rhee relies on what Mr Mortimer was alleged by Mr Singh to have said to him and what the Tribunal found Mr Mortimer to have said to him, the Tribunal having preferred Mr Singh's evidence to that of Mr Mortimer. Mr Mortimer said "I do not know what we can put you on because you can't do this and you can't do that" and then in response to Mr Singh's query as to why he should be treated differently to other porters Mr Mortimer said "It's the rule of the land".
21. Miss Rhee then takes us to paragraph 27 of the liability decision in which the Tribunal find:

27 "It is more consistent with the Applicant's version that there was an unpleasant meeting on 19 November which left the Applicant sufficiently traumatised to decide that he could no longer continue working that day."

And subsequently in paragraph 28, the Tribunal find:

28 "Mr Singh was repeatedly seeking confirmation as to whether he could return to Wolfson. He never got a straight answer. He was entitled to receive one."

And at paragraph 29:

29 "There was no effort to accommodate Mr Singh. On the contrary there were obstacles placed in his way. Mr Mortimer knew Mr Singh wanted to return to Wolfson. He appears to have altered the hours for that job just before the Applicant was due to return to prevent that from occurring in our view."

22. Miss Rhee submits that, taking those passages together, they clearly and unequivocally amount to high-handed and oppressive behaviour and probably to malicious and insulting behaviour as well; it does not matter which of the various adjectives from Alexander one lights upon, the threshold is passed if the behaviour is found to merit any one. She says that they are, or at least one of them is, satisfied in this case on those findings.
23. She puts forward as a second argument that the Tribunal's decision on this issue in paragraph 20 of their remedies decision has with it no reasons and is not sufficient to comply with the well known requirements in the case of Meek v City of Birmingham District Council [1987] IRLR 250. Alternatively, Miss Rhee uses the lack of reasons in paragraph 20 as support for her first argument, on the basis that the lack of reasons indicates that the Tribunal were not thinking about and did not have in mind their findings of fact in the liability decision.
24. Mr Brown submits that the reasons for the Tribunal's decision in paragraph 20 are clear from a reading of their remedies decision as a whole, in particular from paragraph 14, albeit a paragraph referring to the award for injury to feelings, where the Tribunal said: -

14 "This was not a case where there was any prolonged campaign of discrimination or harassment. It arose out of an isolated act based upon the employer's refusal to allow the Applicant to return to his old duties at Wolfson. The Applicant has not lost his employment. At any rate, he remains there an employee of the Respondents because although Mr Singh believes he cannot go back he has not resigned nor has he been dismissed."

25. That, submits Mr Brown, gives a clear flavour of what the Tribunal thought about the seriousness of this case; and that is supported, he submits, by a passage in paragraph 30 of the liability decision where the Tribunal say (referring to Mr Singh):

30 "His absence seems wholly disproportionate to the treatment he received but that is a matter which goes to the issue of remedy."

26. Mr Brown further submits that it is plain that the Tribunal did have their liabilities decision well in mind. It was covered in argument by both Counsel during the course of the remedies hearing; it was in front of the Tribunal; they were specifically directed to different parts of it; and, in paragraph 16 of the remedies decision, the Tribunal made an express reference to their previous decision and in particular to the excerpt from paragraph 30 of that decision which we have just quoted. He submits that the unpleasantness of the meeting between Mr Singh and Mr Mortimer on 19 November was not particularly grave and that while, if the Tribunal had found that this was a case for aggravated compensation, he could not have appealed against that conclusion because it would have been a decision on the facts which it was open for the Tribunal to make, by the same token the Tribunal's decision that this was not a case for aggravated compensation was equally a decision which it was open to them on the facts to make.
27. In our judgment, the findings reached by the Tribunal in their liability decision were not such as to require the Tribunal, in considering its remedies decision, to conclude that the Trust's conduct was such that the threshold requirements for an award of aggravated compensation were inevitably met.
28. The Tribunal were entitled summarily to describe their views as to the nature of this case, as they did in paragraph 14 of the remedies decision, in the passage we have already set out; and it was open to the Tribunal, having regard to the facts found in the first decision and their expressions of view in paragraph 30 of that decision and paragraph 14 of the second decision, to conclude, as they did, that this was not a case in which the treatment of Mr Singh was high-handed, malicious, insulting or oppressive. The Tribunal heard the evidence and made their findings upon it. We see nothing to indicate that their earlier findings were not in their minds when they came to make the decisions that they made at the remedies hearing, including their decision as to aggravated damages; and we accept Mr Brown's submission that paragraph 16 of the remedies decision indicates that they did have their earlier decision well in mind, as one would ordinarily have expected. The Tribunal were in the best position to assess, in the light of their findings of fact, whether the threshold requirements for an aggravated compensation award had been passed and, as they were entitled to do, they decided that they had not.
29. While the specific findings relied upon by Miss Rhee might have persuaded them to make an award of aggravated compensation, they were not such findings as to compel them to do so, nor was their conclusion in contradiction of those findings.
30. Of course the discriminatory conduct of Mr Mortimer was unpleasant and had a sad and substantial effect on Mr Singh; but the findings as to that conduct are not such as to place the case in the category of those in which an award of aggravated compensation had to be made. The Tribunal had a question of fact to resolve. They applied the right test in law to the resolution of that question; and thereafter their decision was one of fact.

The Duration Of The Loss Of Earnings Award. Was It Too Short?

31. The Tribunal concluded that the evidence of Dr Blacker, the Trust's Consultant Psychiatric expert witness, was preferable to that of Dr Chaparala, Mr Singh's Consultant Psychiatric expert, where of course they disagreed.
32. In his first report of September 2000 Dr Chaparala had expressed the view that Mr Singh was suffering from a severe stress reaction which could take from 6 months to 10 years (presumably from the date of that report) to recover, depending on treatment and which was attributable to the discrimination. However, in his second report, written in July of the following year after he had read Dr Blacker's report, he said that he agreed with Dr Blacker to a substantial degree. In particular he agreed, firstly, that the diagnosis was one of adjustment reaction with anxiety and depression but that Mr Singh's symptoms had become an independent entity without a causal connection to the original stressful incident (i.e. the discrimination) and, secondly, that 80% of the symptoms of Adjustment Reaction Disorder experienced in the first 3 months were primarily attributable to the incident in November 1997. He went on to say, however, that 80% of the continuing symptoms up to the time of writing were attributable to the incident. It is entirely unsurprising that the Tribunal preferred Dr Blacker's evidence. Dr Chaparala had retreated from his first report; and his second report had an inherent contradiction within it, as we have just set out.
33. It is unnecessary for us, for the purposes of this decision, to go through Dr Blacker's conclusions as they are summarised in paragraph 8 of the remedies decision. Neither side seeks to criticise the Tribunal's summary. In essence Dr Blacker's conclusions were that Mr Singh was suffering, or had been suffering, from an acute Adjustment Disorder which was attributable, at least as to 80% of his symptoms, to the discrimination but that an acute Adjustment Disorder would not continue for longer than 6 months after the stressor incident and that, in this case, Mr Singh had developed a chronic disorder which was not attributable to that incident.
34. The Tribunal, at paragraph 15 of the remedies decision, set out why they preferred the expert evidence of Dr Blacker to that of Dr Chaparala and expressed how they were impressed by Dr Blacker's evidence. They expressed their conclusion in the light of Dr Blacker's evidence in paragraph 16 in these words:

16 "We can see no reason why the Applicant should not have been able to return to work within a period of 3 months from the date of the incident. He was offered the opportunity of doing so at a separate place from those who had discriminated against him. Had he taken up that offer, he may well have avoided the daily rumination which Dr Blacker believes is a substantial cause of the Applicant's present condition. On the whole, we accept the conclusion of Dr Blacker that Mr Singh should have recovered sufficiently to have returned to work in 3 months, but given the Applicant's sensitive personality we are prepared to accept it might take a bit longer. In any event it should not have gone beyond 6 months. The Respondent will therefore be ordered to pay the Applicant loss of earnings for 6 months from the date of the act of discrimination, which was 19 November 1997."

35. That conclusion, that there should be an award of 6 months loss of earnings, is attacked by both sides.
36. Miss Rhee submits that the Tribunal omitted to take into account the factual context in which Mr Singh was away from work. She submits that, during the initial months of his absence from work (the acute period), there was commenced an internal investigation of his complaints which continued into the summer of 1998 and well beyond the period of 6 months' loss of earnings awarded by the Tribunal, which expired presumably on about 19 May 1998.
37. She does not submit that the existence of that investigation of itself would have been sufficient to justify Mr Singh's absence from work beyond the 6 month period; but she relies on the fact that the Tribunal had made no reference in their decision to evidence from the Trust's Occupational Health Physician, Dr Robertson. In January 1998 Dr Robertson noted that Mr Singh was:

"not sleeping…feeling anxious…feeling tense and depressed…felt in shock after last interview…now reminded of day of operation [that was, we interpolate, obviously a reference to his major brain surgery]…very distressed…very hard up and depressed."

Dr Robertson recommended that Mr Singh stay off work until his grievance had been resolved.

38. Then, in April, Dr Robertson wrote to the Personnel Manager of the Trust saying: -

"I have seen Mr Singh today at the Occupational Health Department. He continues to be signed off sick. I think it unlikely that the situation will improve until the current investigation has been completed. He is due to receive more appropriate treatment and hopefully this will improve matters. I will continue to keep him under review and see him again in 3 months time."

39. The thrust of Miss Rhee's submission is that, in the light of that material, which was before the Tribunal but to which the Tribunal make no reference, the Tribunal ought to have found that it was entirely reasonable and proper for Mr Singh to be away from work until after the end of the investigation, together with a period thereafter to enable him to prepare himself for work, taking him up to the beginning of September 1998.
40. We do not accept Miss Rhee's submissions, intelligently and attractively as they were put. Dr Robertson was not called as a witness at the remedies hearing. While the medical records, including his observations to which we have referred, were before the Tribunal, his views as to the effect of what had happened on Mr Singh's health were not put before the Tribunal as those of an expert witness, open to cross-examination, the strength of which the Tribunal were in a position to test and weigh. The experts were Dr Blacker and Dr Chaparala. There was an Order for one medical expert on each side. No doubt Counsel for Mr Singh either did cross-examine or had the opportunity to cross-examine Dr Blacker on Dr Robertson's views; but the Tribunal were wholly entitled to decide that Dr Blacker's conclusions were those which they accepted.
41. On the basis of that, the Tribunal concluded that the effects of the discrimination upon Mr Singh's health ended after 6 months. It is true that there is no reference to Dr Robertson's views; but that is because his views were a) irrelevant and b) not tested before the Tribunal as they would have been if he had been an expert witness before the Tribunal. We see nothing by way of error of law in the failure of the Tribunal to make any reference to what Dr Robertson had said.
42. Furthermore, it is, of course, true that Mr Singh continued to be ill and absent from work at the end of May 1998 and until the end of the investigation; he was still off work through illness at the date of both of the decisions to which we have been referring; indeed he is still off work now. After 6 months had elapsed he was not, on the basis of the Tribunal's findings, off work because of the Trust's discrimination but for other reasons unconnected with the Trust's discrimination. Had he not been ill after the 6 months had elapsed but then, as a result of Dr Robertson's advice, felt that he could not go back to work until the investigations had been completed, the Tribunal might have thought about adding to the 6-month period for those reasons; but those were not the facts of this case. He continued to be ill after 6 months, but not because of the discrimination.
43. Miss Rhee has explicitly put her case not on the basis that Mr Singh knew what Dr Robertson had said, and thus on the basis of what it might or might not have been reasonable for Mr Singh to do, but simply on the basis of Dr Robertson's opinions which were before the Tribunal as part of the medical record.
44. For those reasons the appeal, as to both limbs upon which it rests, must be dismissed; and we turn to the cross-appeal.

The Cross-Appeal. Was the Duration of the Loss of Earnings Award too Long?

45. The basis of Mr Brown's submissions on this first limb of the cross-appeal is paragraph 16 of the remedies decision and in particular the passage from that paragraph which we have already set out at paragraph 34 of this judgment and do not intend to repeat.
46. Firstly, Mr Brown says that in the sentence "we can see no reason why the Applicant should not have been able to return to work within a period of 3 months from the date of the incident" the Tribunal were finding that the period of loss of earnings attributable to the discrimination was no more than 3 months and therefore no more than 3 months should have been awarded.
47. Alternatively, and with perhaps slightly more vigour, Mr Brown submits that in the remaining part of the paragraph the Tribunal were deciding that something should be added to the 3-month minimum period because of Mr Singh's sensitive personality which might mean that it would take him a bit longer to overcome the effects of the discrimination but that the time which it might take him to get over those effects should not have been more than 6 months as a maximum.
48. Therefore, he submits, since 3 months was seen as a minimum and 6 months as a maximum, and because the Tribunal found that he only "might" have needed longer than 3 months, the Tribunal necessarily had to find a point somewhere between 3 and 6 months and could not, if they were going to be logically consistent, award compensation on the basis of the 6-month period.
49. We do not so read paragraph 16 of the remedies decision. Firstly, we regard it as entirely plain, reading the paragraph as a whole as one should and not isolating the sentence which starts "we can see no reason" from the remainder of the paragraph, that the Tribunal were deciding that something more than 3 months was appropriate on the facts of this case. We do not accept the argument that the Tribunal have tied the period in respect of which they could make an award to a 3-month maximum.
50. Secondly, thereafter it was for the Tribunal to decide how much longer they felt it right to add to the 3-month minimum to reflect Mr Singh's personality. The Tribunal, in our judgment, should not be taken to have been saying '6 months is the maximum' but as saying that they regarded the appropriate period as 6 months and no more, i.e. "6 months but not a day more is the period we decide was appropriate". That was not a guess on the Tribunal's part. It was, to a degree, supported by Dr Blacker who said, as summarised by the Tribunal at paragraph 8 (b) of the remedies decision, that "Adjustment Disorder is a condition which is classically recognised as being resolved within six months of the termination of the stressor."
51. Having regard to the nature of the evidence about Mr Singh's personality, it was open to the Tribunal, in our judgment, to conclude that to allow the whole of that 6-month period, which Dr Blacker thought in theory could be allowed, was fair and reasonable in Mr Singh's case. It was medically possible; and from there on it was a matter of fact for the Tribunal to decide.
52. Accordingly, we reject this first limb of the cross-appeal.

The 80% Reduction

53. It is common ground that Dr Blacker and Dr Chaparala agreed that, in the relevant period, 80% of Mr Singh's symptoms were attributable to the discrimination and the effects of the discrimination and 20% were not. Miss Rhee correctly, as it seems to us, points out that the two doctors disagreed about what were the causes of the 20% of symptoms which were not caused by the discrimination; but we see no reason why that difference between them should be regarded as of any importance for present purposes.
54. The Tribunal referred to the 80%-20% split specifically in paragraph 8 (e) of the remedies decision. Mr Brown submits that when they came, in paragraphs 11-14, to set out their findings and explain their conclusion as to the amount of the award for injury to feelings, no reference was made to the 80%-20% split. Therefore, he submits, the £5,000 award, on the face of it, appears to be in respect of all of the symptoms and not merely in respect of 80% of them.
55. However, Mr Brown fairly agrees that there is nothing which expressly indicates that the Tribunal were awarding compensation in relation to 100% of symptoms or were not taking the 80%-20% split into account. The Tribunal had referred to the 80%-20% split only shortly previously in their decision; and we see no reason why, from their language, they should be taken to have forgotten it when they came only a few paragraphs later to this part of the case.
56. In arriving at the figure of £5,000 for injury to feelings the Tribunal stated that it was making the award for the injury to feelings expressly in the context of what the employers had done. That is set out plainly in paragraph 14 and appears to us to be a positive indication that they were doing what they were obliged to do, namely to award compensation for the injury to feelings and psychiatric symptoms caused by the Trust's discrimination. We see nothing in the decision to indicate that they did anything other than that.
57. As to loss of earnings, it is quite clear that the Tribunal awarded the whole of the lost earnings, on a net basis of course, over the period of 6 months which the Tribunal had decided was the appropriate period for such an award. The Trust seeing, as is evident, that no 20% reduction had been applied to the loss of earnings award, sought a review which was declined by the Chairman sitting alone on the basis that it had no reasonable prospect of success. In the Summary Reasons for the Chairman's decision he said that the Tribunal decided not to reduce the relevant figure by 20% on the basis that it was impossible for any medical expert to assess accurately the percentage change of the symptoms being attributed to discrimination in question; but, as Mr Brown points out, the experts were agreed as to the 80%-20% split; and the reasons given in the review decision then do not explain satisfactorily why no reduction to the award for loss of earnings was made.
58. However, what is clear, in our judgment, is this. There were, during this period of absence of work, two potential causes of that absence. One was the effects of the discrimination; the other was whatever were (and the doctors were not agreed about them) the causes of the other 20% of symptoms which were not caused by the discrimination.
59. It is a well known principle of common law that, where there is more than one cause of loss, as long as the cause which is relevant to the proceedings was a material cause of the loss, the Applicant or Claimant is entitled to compensation in respect of that loss.
60. Here there can be no doubt at all, on any sensible approach to the facts, that the discrimination was, at the very least, a material cause for the absence from work during the period determined by the Tribunal. Indeed, prior to the discrimination Mr Singh had gone back to work and was able to work; it seems clear that the 20% of his symptoms which was not caused by the discrimination did not cause him to be away from work.
61. Having regard to those facts and to what we regard as the proper principle of law, we take the view that if we were to send the question of loss of earnings back to the Tribunal for them to consider whether to make a reduction as sought by the Trust, were the Tribunal to approach the matter properly directed in law they would not be able to make such a reduction.
62. Miss Rhee and Mr Brown have helpfully accepted that, if the principle of law which we have just set out applies, there is no point in sending the matter back because the result would be precisely the result which the Tribunal had in fact reached on this part of the case although they would reach that result by a different route.
63. For those reasons the second limb of the cross-appeal fails.
64. The result overall is that both the appeal and the cross-appeal are dismissed.