At the Tribunal | |
On 13 October 2004 | |
Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR D CHADWICK
DR S R CORBY
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR EDMUND BEEVER (Of Counsel) Instructed by: Solicitor to the Council Ingleby House 11-14 Cannon Street Birmingham B2 5EN |
For the Respondent | MS HARJIT GREWAL (Of Counsel) Instructed by: Messrs Bailey Wright & Co 3rd Floor Guildhall Buildings Navigation Street Birmingham B2 4BT |
SUMMARY
Appeal by the Respondent Council against Remedies Decision awarding £118,000 net to the Applicant in respect of lifelong loss (as discounted by reference to Ogden Tables), said to arise out of a period of discrimination found against the Respondent at the Liability Hearing; further information had arisen at the Remedies Hearing not known at the Liability Hearing: no adequate consideration by the Tribunal of whether there was any, and if so what, future loss (considered in the context of Dunnachie No 3 which was not cited at the Tribunal) or of causation of past or future loss and causation and quantum of compensation for injured feelings and/or psychiatric injury (Gardiner Hill v Rowland Berger Technics Ltd, Vento and Salmon considered). Remitted to same Tribunal but with substantial caveats (Sinclair Roche considered).
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
4.1 The Applicant was the subject of a racial attack in September 1997, as we have mentioned, for which the Respondents were not suggested to be liable. This is described in paragraph 19 of the Liability Decision:
"On 8 September 1997, when the applicant went on a visit on the estate, 15 or so youths surrounded his car. They shook the applicant's car and shouted racial abuse at the applicant. They tried to rob him. A youth opened the applicant's car door. As he did so the applicant hit him. The youths ran off and the applicant was very shaken."
There was a second incident on 21 November 1997, described in paragraph 25 of the Liability Decision, when:
" the applicant, whilst performing his duties, suffered racial abuse from a tenant. The tenant said that the applicant was an "unhelpful black bastard"."
The finding of race discrimination by the Tribunal arose out of the Tribunal's conclusion that it failed to take adequate steps to protect the Applicant from September 1997 onwards:
"135. The tribunal is satisfied that the reason [for not sending a report form to the Personnel Section] was that Mr Ladbrooke did not consider the incident to be a serious one. He did not appreciate the importance of the complaint with regard to racial harassment and racial conduct.
136. Mr Ladbrooke handled the incident of 21 November 1997 in a similar way.
139. By no later than 8 December 1997 the Council knew the applicant had been the subject of racial harassment and the applicant had made it clear he did not consider he should be working in such an environment exposing him to the possibility of further such harassment. The Council did not take the request from the applicant to be transferred to work away from the estate seriously.
143. the tribunal considers that it is appropriate to draw the inference that the reason the applicant's complaints were not taken seriously and that he was not properly considered for transfer elsewhere were because the grounds upon which he made the complaints, namely racial grounds."
4.2 The second complaint of race discrimination which was established related to the period between November 1998 and December 1999, by virtue of the Appellant's failure to deal with the Applicant's grievance timeously and properly:
"152. The tribunal considers that the grievance was not adequately investigated by Mr Hardy establishing the precise nature of what was complained of and by interviewing the applicant himself and others with knowledge of what took place on the estate
153. The tribunal is satisfied that the delay before Mrs Lockley was asked to arrange for the investigation to be carried out was largely not the Council's fault. The explanations given for the delays thereafter may be summarised as pressure of work. No adequate explanation was given for the inadequacy of the investigation itself. In the circumstances the tribunal does not consider the Council's explanation for the delay and inadequacy of the investigation of the applicant's grievance to be reasonable.
155. The tribunal is satisfied that, on the balance of probabilities, it is more likely than not that a grievance relating to an issue which did not relate to a complaint of racial discrimination would have been treated with more gravity than was afforded the applicant's grievance. The tribunal considers that it is more likely than not that the Council treated the grievance raised by the applicant in the manner in which they did because it related to issues involving racial grounds. The tribunal considers it more likely than not that the Council would have treated a grievance relating to employment which did not relate to race in a different manner. It is more likely than not that the grievance would have been properly investigated and the investigation would have taken place in a shorter time scale. Therefore the applicant was treated less favourably than the Council would treat others on racial grounds."
At the time, the Applicant was off work so far as the Appellant was concerned, and (as appears from the Tribunal's findings at the Remedies Hearing) was carrying out other work.
4.3 The failure by the Respondent Council properly to consider the Applicant for top-up of sick pay was found by the Tribunal to be disability discrimination. This related to the period from November 1998 onwards:
"168. It is often difficult to establish the cause of illness. It is particularly difficult to establish the cause of mental illness. As in many such cases, the situation is not clear cut. However the Tribunal considers that it is more likely than not that the applicant was refused Top Up payment because of the nature of the illness from which he was suffering and not because of the difficulty of establishing a causal connection [with] that illness or the worsening of that illness.
169. In the circumstances of this case the applicant was suffering from a known and established mental condition. The applicant said the condition arose as a result of the racial harassment which he suffered in carrying out his work. There was medical evidence as to the causal relationship between that work and the applicant's injury. The tribunal is satisfied that for a reason relating to the nature of the applicant's disability, namely that it was a mental disability which was not post traumatic stress disorder, the applicant was treated less favourably than the Council treated and would treat others who had suffered from a physical disability. As a result, the applicant was not properly considered for Top Up which is a benefit. This amounted to discrimination as defined in section 5(1) of the Disability Discrimination Act and that discrimination was unlawful as is referred to in Section 4(2)(c) of the Disability Discrimination Act."
4.4 The fourth complaint which was found related to the failure by the Appellant to make any reasonable adjustment by considering or discussing with the Applicant any alternative employment or different working conditions. The Tribunal found in paragraph 175 that "even taking into account the extent to which taking the steps would prevent the effect in question the tribunal finds that during 1998 and 1999 the respondents did fail to discharge their duty to make reasonable adjustments by considering whether there was suitable alternative employment for the applicant".
"73. The Council's Audit Department was asked to carry out an investigation with regard to the applicant to ascertain whether or not he was working during the period he was away from work sick. As a result it was established that the applicant was the sole director of a company "Diamond", which was incorporated on 8 July 1998. That company had four retail outlets. Physical surveillance was carried out between 19 October 2000 and 16 November 2000. On two occasions the applicant was seen at Diamond's Birchfield shop and on a third occasion his car was seen parked outside the premises. On 30 November 2000 and 1 December 2000, video surveillance was undertaken with regard to the applicant. On the first of those days, the applicant attended upon an operative from the surveillance company who indicated that he was interested in acquiring mobile telephone equipment. On 1 December 2000, the applicant opened the shutters at the shop. On that occasion, the applicant gave another operative from the surveillance company a card showing his name indicating that he was a director of Diamond.
74. At the time of the audit, the applicant drove a Range Rover, manufactured in 1989, which had a personalised number plate referable to the applicant and also a Rover 75, first registered in April 2000. The tribunal was told that the Rover 75 motorcar was provided by the applicant's sister, who was in possession of it pursuant to a hire purchase agreement This car too has a personalised number plate referable to the applicant."
"15. Diamond operated mobile telephone shops in Birmingham, Nottingham and Sutton Coldfield. In the video footage the applicant was seen to be playing something of an active role at one of the shops.
16. The business of Diamond failed, and a winding-up order was made in respect of the company on 13 November 2002. The applicant told the tribunal that a cousin, Mr Neville Sinclair, had been responsible for the day-to-day running of Diamond until July 1999 when the applicant dismissed him. The applicant told the tribunal that the applicant had little involvement in the day-to-day operation of Diamond. In his statement to the tribunal, the applicant said when his family realised he was not getting involved with things they tried to encourage him by incorporating Diamond. When the applicant was questioned with regard to this, the applicant said that his witness statement was in error and his sister, Sharon, had run the business of Diamond after Sinclair left the company."
"18. The applicant was the sole director of Diamond, and when he completed the form, and was asked to list the nature of duties and responsibilities of each of the officers of the company (it being explained that an officer included a director/manager or company secretary) the applicant included himself only. When requested to provide details of his duties and responsibilities and what he did on a day-to-day basis, the applicant said he was the director responsible for the running of the company from 1999 to 2002. When questioned at a later date by the Official Receiver, amplifying on that, the applicant said he was in overall control of all company activities. The applicant said he was in sole control, however some staff took certain matters upon themselves without authority. The applicant said he was particularly responsible for hiring and firing of staff and budgetary decisions. The applicant said the company secretary, who is now his wife, was only there to fulfil the legal obligations and had no other involvement with Diamond. The applicant said in 2000 he became ill and left his Council job and spent less time involved with Diamond he claimed benefit from this point onwards. The applicant made reference to Jaddoo International Trading Ltd and Com-Net (UK) Ltd. He said they were currently non-trading companies, though they may wish to trade in the future.
19. The tribunal saw the papers relating to an application by the Employment Tribunal by Mr Sinclair, including a statement intended to be used by the applicant at a hearing of Mr Sinclair's claim. This indicates that the applicant dismissed Mr Sinclair and, in the statement, the applicant made extensive comment as to Mr Sinclair's involvement with the business and the performance of Diamond."
"20. The tribunal has considered the extent of the applicant's involvement with Diamond after January 1998. The tribunal does not find the applicant's contention that his family sought to encourage him by incorporating the company Diamond, credible. Nor does the tribunal find credible the applicant's contentions that this was an effort to relieve him of business burdens. The applicant was the sole director of Diamond and, as he told the Official Receiver, was in overall control of its activities. The applicant was in sole control of the business and performed important managerial tasks for it. In addition, having seen the video-tape evidence and noted the applicant's familiarity with the products and activities of the shop, the tribunal is also satisfied that the applicant undertook some day-to-day activities for the business. The applicant's activities in connection with Diamond are not consistent with the applicant suffering from the degree of injury which he contends.
21. Insofar as Diamond is concerned, the tribunal is satisfied that the applicant had a greater involvement than he told the tribunal to the extent that he had a regular and substantial involvement with the management of that company after he ceased to work for the Council. The tribunal is satisfied that the applicant's involvement with Diamond was not a full time involvement, but it is likely to have exceeded 10 hours per week (the amount of time which the applicant told the Magistrates he devoted to Diamond when appearing to obtain the Protection Order relating to the liquor licence for the Adastra Nightclub in 1999 [another business venture of the Applicant during the relevant period to which we refer below], when it was in his interest to underestimate the amount of time spent working for Diamond)."
"24. The applicant told the tribunal that his involvement with the nightclub was solely as a friend of Mr Smith and he had no actual personal involvement in the running of the nightclub. The applicant told the tribunal that he attended the Adastra nightclub over the period from 1999 to 2001 on three occasions only.
25. It is clear that the applicant attended meetings of the relevant committee of the local authority with regard to the public entertainment licence at the Adastra nightclub. During those meetings the tribunal has no doubt that the relevant committee was under the impression that the applicant played an important part in the management of the nightclub, and the applicant knew that was the case and acted accordingly. The applicant said at a meeting on 27 October 1999 he considered that the staff of the club had acted properly during incidents at the nightclub known to the police, and was able to provide information relating to those incidents. The applicant personally completed several forms relating to the public entertainment licences at the Adastra nightclub.
26. On 14 December 2000 the applicant attended the meeting of the local authority committee in connection with the application for an occasional public entertainment licence on 31 December 2000 The minutes say "In summary, the applicant confirmed that he had arranged extra security for this particular function. He would also ensure that the car park area was controlled during the function
27. The applicant attended another meeting of the local authority committee dealing with the public entertainment licence on 27 June 2001 following a report submitted by the police relating to a number of incidents at the club. The minutes record that the applicant confirmed he was not always present but it was managed on a rota basis. The minutes say that the applicant said that all members of his door staff were experienced although he admitted they were not all licensed. The minutes say "responding to questions Mr Jaddoo indicated that he was present for approximately 80% of the time that the club was operational." The minutes record that the applicant was happy to carry out the police recommendations with the exception of the installation of a metal detector walkthrough archway, and he indicated the nightclub would instead like to investigate the purchase of a handheld scanner.
28. On 26 September 2001 the applicant applied for a variation in the public entertainment licence relating to the nightclub
29. The applicant attended a meeting of the committee dealing with public entertainment licences on 21 November 2001. The applicant confirmed that a "clicker system" was in use and said the handheld metal detector system was proving to be very effective."
"30. The tribunal does not find that the applicant's contention that he had no role whatsoever at the nightclub, other than by allowing his name to be used, to be convincing. Further his attendance at the Wolverhampton City Council committee meetings is not consistent with his claim that he avoids any unnecessary contact with people and will go to every effort to avoid any form of confrontation.
31. The tribunal is satisfied that the applicant had a substantial but fluctuating involvement in connection with the Adastra nightclub. The applicant told the tribunal that his involvement was limited to applying for the licences and attendance on at most two or three occasions. The tribunal does not accept this evidence, in particular because it is inconsistent with what the applicant told the Committee of Wolverhampton City Council and also with the evidence of Mr Smith (which the tribunal considers itself understated the applicant's involvement with the nightclub) to the effect that Mr Smith contacted the applicant on a weekly basis with regard to the nightclub. If the applicant's involvement with the Adastra nightclub was as little as he claimed then it would be unlikely that he would be able to deal in such detail with the matters raised before him during the meetings. "
"32. In his statement to the tribunal the applicant said his sister set up these companies. In fact the applicant contacted his accountant for the purpose of doing so and the applicant was the sole director of each of them. It is to be recollected that the applicant told the Official Receiver that the companies were currently non-trading companies though they may wish to trade in the near future. When responding to questions from Mr Beaver, the applicant said that Com-Net (UK) Ltd, which has since changed its name to Diamond Cellphones (UK) Ltd, was his sister's company and that Jaddoo International Trading Ltd was a company formed for the use of a cousin based in Jamaica. By the time of the hearing the applicant had ceased to be a director of either company.
33. The tribunal is not convinced as to the applicant's explanation with regard to these companies. The applicant's involvement with them is certainly not consistent with the claimed actions of the applicant's family to avoid putting any pressure on the applicant."
"6) Both doctors note the evidence presented by the respondents suggesting Mr Jaddoo has been engaged in employment, in particular his assertion to the Licensing Authorities that he played a substantial role in managing the nightclub and the suggestion that he played a significant role in the day-to-day functioning of Diamond Communication Systems. Both doctors note that Mr Jaddoo has produced a statement denying these allegations.
7) If the tribunal accepts the assertions referred to in 6) above, Mr Jaddoo's presentation to both doctors cannot be relied on. This is a matter of fact for the tribunal.
8) Both doctors agree that the video shows no evidence of mental disorder. Dr Hallstrom feels that the level of functioning shown is inconsistent with severe agoraphobia. Dr Kennedy does not feel that the video evidence is sufficient to refute the diagnosis agreed by both doctors."
"34. Taking into account the tribunal's finding of fact, the medical reports, the evidence given by Drs Kennedy and Hallstrom and the answers given by [them] to the agreed questions on 1 March 2004, the tribunal finds that the applicant suffers from anxiety and panic attacks, but his self report to Dr Kennedy and Dr Hallstrom exaggerates the extent to which he cannot interact on a regular and consistent basis with others and to which he is affected in social situations. The tribunal is satisfied there are times when the applicant is symptomatic and this interferes with his enjoyment of life and at times it would interfere with his ability to work, but this occurs much less frequently than he told the medical consultants and the tribunal.
35. The tribunal is satisfied that the applicant's condition is likely to improve once these proceedings are concluded.
36. The tribunal is satisfied that prior to 1997 the applicant had a pre-existing anxiety disorder. The tribunal is satisfied that the Council's unlawful conduct exacerbated the applicant's pre-existing medical condition and resulted in a condition and a significant deterioration in it. The tribunal is satisfied that, with appropriate medical treatment and co-operation by the applicant, it is likely that he will, following the conclusion of these proceedings, be able to recover significantly more than 65% of his previous working capacity [a percentage which had been suggested by a Dr Briscoe, consultant psychiatrist, in his letter dated 20 January 2003, plainly written without any knowledge of the matters set out above, but apparently based upon an understanding that he "could be in a position to gain some form of work within the next twelve months"].
37. The tribunal is satisfied that the applicant is able to undertake more activities of a business-like nature than he told the tribunal. The tribunal considers it more likely than not that the applicant could undertake normal work in business relationships providing that he is not exposed to unlawful racial discrimination, or undue pressure."
17.1 There must be very great caution in relation to a conclusion as to the existence of lifelong loss where the applicant or claimant is as young as 31 or 32, as the Applicant was in this case at the time of the relevant incidents (cf Dunnachie No 3 at paragraph 32).
17.2 Before the Ogden Tables are in the event adopted by a Tribunal, it must first conclude that the applicant's loss is prima facie lifelong or career long (Dunnachie No 3 paras 22, 28, 29, 31, 33).
17.3 There must, on any basis, be allowance within the calculations for the duty of an applicant or claimant to take reasonable steps to mitigate his or her loss (cf Dunnachie No 3 paragraphs 11(iv), 19, 28).
Past Loss
i) the findings made by the Employment Tribunal as to the substantial work done by the Applicant during that almost six-year period for Diamond, Adastra etc. The Tribunal's only finding was (paragraph 46): "it has heard no evidence that the applicant was involved in work which generated income during that period".
ii) findings made by the Employment Tribunal, as to the capacity of the Applicant, (in the light of its conclusion that he had exaggerated his account to the medical experts and his undertaking of "more activities of a businesslike nature than he told the tribunal") that on any basis (paragraph 34) "there are times when the applicant is symptomatic [which] at times would interfere with his ability to work, but this occurs much less frequently than he told the medical consultants and the tribunal" and that (paragraph 37) it is "more likely than not that the applicant could undertake normal work and business relationships provided that he is not exposed to unlawful racial discrimination, or undue pressure".
Future Loss
"52. The tribunal has then moved on to consider the multiplier. Ms Grewal said that the multiplier should be 20.8 reduced by 0.02 (to reflect the risk of loss of employment) to 19.67. Mr Beever said that the multiplier should be between 0 and 9 to reflect the true extent of the applicant's capacity to work taking into account an exaggeration of the applicant's symptoms, the fact that it is unlikely that the applicant would work beyond his 58th birthday since by then he would have 40 years service with the Council and that Ms Grewal does not incorporate adequate reduction for other matters as are referred to in the Newsome case.
53. The tribunal is satisfied that, whilst the applicant suffered, and continues to suffer from his medical condition, he does exaggerate the symptoms resulting from it. The tribunal reaches that conclusion because, on the findings of fact made by it, the applicant was much more actively informed in the business of Diamond and of the Adastra nightclub than he told the tribunal, and, further, he had personal involvement in other companies which were set up by, or for, him for the purpose of business. Regrettably the tribunal is unable to rely on the applicant's description of the symptoms of his medical condition or of the effect upon him.
54. The applicant is clearly an entrepreneurial person, as is shown by his involvement in various businesses, and it is likely that he will participate in businesses that will generate income, and it may be that such would cause him to terminate his employment with the Council earlier than would otherwise be the case. The tribunal is also satisfied that there may well have been other reasons for the applicant terminating his employment with the Council, or his employment being terminated well before his 58th birthday. Taking these factors into account, the tribunal considers that the appropriate multiplier in this case is 10. This results in a future loss of £40,224.20."
25.1 that the Tribunal is addressing what, in Dunnachie No 3-terms, would be described as "old job facts" and not, as would otherwise have appeared to be the case by reference to the use of the future tense, "new job facts".
25.2 that the choice of the multiplier of 10 is much closer to, if not consonant with, the multiplier that was being sought by Mr Beever, rather than the multiplier of 19.67 that she was seeking, and thus Mr Beever can hardly complain by way of appeal of the adoption of such multiplier.
25.3 that the Tribunal is entitled, by reference to the factors set out (after allowance made for its misprinted or misexpressed first sentence), to apply a 50% discount to the multiplier of approximately 20 for which she was contending.
i) If it were concluded by the Tribunal that, not only is there no future loss, but by virtue of his entrepreneurial skills, the Applicant might positively earn more than if he had remained with the Council, then any pension loss would, in those circumstances, be outweighed by an earnings gain.
ii) Interrelated with this is our understanding that, on the whole, the pension position is more favourable to employees in the public sector than in the private sector, although there was no particular finding in this regard by the Tribunal. It may be that it would be necessary to consider the issue of pension loss discretely or, alternatively, it may, very much for the reasons set out above, be necessary to consider whether, in the private sector, the Applicant may have a less good, or no, pension entitlement, and yet receive a higher salary to compensate.
Injury to feelings and psychiatric damage
31.1 This award of £37,500 is made in respect of the discriminatory treatment (by failure to take sufficient steps of the Applicant by the Appellant), the facts of which, as found by the Tribunal, are set out in paragraph 4 above, in respect of an Applicant with a pre-existing condition for which the Appellant was not responsible, and who had been the subject of two racial incidents, for which, again, the Appellant was not responsible.
31.2 The Tribunal awarded £20,000 for the two discriminations together at the instance of both Counsel ("with some misgivings": paragraph 58).
31.3 Although the Tribunal noted, in paragraph 44 of its Decision, that it was "satisfied that there are substantial "overlaps" between the heads of financial loss suffered by the applicant as a result of the Council's unlawful acts", it did not make the same note in relation to the inevitable overlap between injury to feelings and psychiatric damage suffered by this Applicant, and the Tribunal does not appear to have done what it is obliged to do, namely:
(i) as enjoined by Mummery LJ in Vento v Chief Constable of West Yorkshire Police (No 2) [2002] IRLR 102 at paragraph 68, to take steps to have "regard to the overall magnitude of the sum total of the award for compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage" such that "in particular, double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage" and/or
(ii) in accordance with the guidance of the Employment Appeal Tribunal per Mr Recorder Underhill QC in HM Prison Service v Salmon [2001] IRLR 425 that it is "necessary to stand back and consider the non-pecuniary award as a whole".
"Injury to feelings.
57. The tribunal has been aided in its consideration of compensation for injury to feelings by the decision in Vento.
58. The tribunal is conscious of the fact that it is dealing with unlawful race discrimination and unlawful discrimination based upon disability and so that two awards are appropriate in respect to injury to feelings. However, counsel asked the tribunal to deal with the injury to feelings arising both from the racial discrimination and the discrimination based upon disability, in one sum. Although it has some misgivings in doing so, the tribunal has done as counsel requested.
59. Taking into account the incidents in late 1997, the manner in which they, and the grievances arising from them, were dealt with and the failure to even consider making adjustments, the tribunal is satisfied that injury to the applicant's feelings falls within the top band mentioned in Vento. The Council was aware that the applicant was vulnerable and took no steps to assist or protect the applicant, notwithstanding his use of the harassment procedure on several occasions. The tribunal considers that the cumulative injury in this case falls within the middle of the top band in Vento and therefore awards the applicant £20,000. In the circumstances, the tribunal has asked itself what would be the position if it had looked at the injury to feelings arising from the unlawful discrimination on grounds of race, and at the injury to feelings arising from the unlawful discrimination on grounds of disability, separately. If it had done so, it would have concluded that, whilst the injury to feelings looked at cumulatively falls within the top band mentioned in Vento, looked at as discrete unlawful acts the injury would in each case fall within the middle band attracting in each case compensation in the order of £10,000, so that the use of the approach favoured by Counsel produces a similar result to that which most attracted itself to the tribunal.
Psychiatric damage
60. Counsel addressed this issue on the basis that the psychiatric injury for all the wrongs should be dealt with together. The tribunal has adopted this approach because, on the basis of the evidence before it, the tribunal is not able to apportion psychiatric injury suffered by the applicant between the wrongs which he has suffered. In considering this aspect of the applicant's claim, the tribunal has considered the guidance of the Judicial Studies Board Publication as to this type of injury. In particular the tribunal has taken into account the applicant's ability to cope with this [life and] work, the effect on the applicant's relationship with his family, friends and those with whom he comes into contact (in respect of each of these matters the tribunal reckons that the applicant was exaggerating the position), the extent to which treatment would be successful, future vulnerability, the medical prognosis and the relationship between the applicant and the Council and its employees. Having done so, the tribunal considers that the applicant falls within the category of moderate to severe psychiatric damage. Again, in this case, the damage falls within the mid band and is £17,500.
33.1 No, or no adequate, consideration was given as to justifying £10,000 in respect of the alleged injury to feelings with regard to each of the two sets of discriminations, particularly in relation to causation (see below).
33.2 There is no consideration of whether the two sets of discriminatory treatments are of equal seriousness, such as genuinely to attract the same sum, £10,000, in respect of each. It seems far too simple to say, without consideration, that that is the case. It would have appeared, at any rate at first blush, that the inadequate steps to support the Applicant, amounting to race discrimination, while he was still employed by the Appellant, was more serious, and is (subject to what we say below), more likely to have led to injury to feelings, than the failures which did not start until considerably later, and at a time when he had ceased to work for the Appellant. The very attempted justification for the £20,000, by way of splitting it into two lots of £10,000, casts doubt on the whole approach.
"Compensation for injury to feelings is not automatic. Injury must be proved. It will often be easy to prove, in the sense that no tribunal will take much persuasion that the anger, distress and affront caused by the act of discrimination has injured the applicant's feelings. But it is not invariably so."
37.1 Fundamentally, perhaps because the agreed 1:3 approach in respect of likelihood of recurrence of the pre-existing condition (see paragraph 16 above) had been relegated to the calculation documents, and had not been the subject of any argument or disagreement between the parties, the Tribunal ignored the fact that it was not valuing the condition per se, but the exacerbation of a pre-existing condition which, on any basis, had a 1:3 chance of having recurred. The approach to this problem adopted in Salmon, which Ms Grewal did not criticise, was to reduce the compensation by the relevant percentage on the basis (see the headnote at 425) "that her depressive illness was only caused to the extent of 75% by the acts of discrimination that had been proved". This aspect was on any basis overlooked by the Tribunal.
37.2 In any event, in the light of the Tribunal's own findings, particularly at paragraphs 35 to 37, it would appear difficult, at any rate without express consideration which does not appear in the Tribunal's Decision in paragraph 60, to accept that the "moderately severe" category as defined is the appropriate place for the Appellant, with his probable ability to undertake normal work and business relationships.
Totality
Conclusion
39.1 Any Tribunal which heard this case would have to base itself on the evidence already heard, and the findings of fact already made, and this Tribunal would be far better placed to do so than any other Tribunal, if indeed the other Tribunal could be put into that position at all without rehearing the evidence, which would, after all this time and those days of hearings, be well nigh unthinkable.
39.2 There has already been considerable delay in this case, and the less delay now by way of remission, the better, and the involvement of a new tribunal would obviously take extra time.
39.3 It may be that a good deal of the error into which we are satisfied that this Tribunal fell was the result of the approaches adopted by Counsel, and, in particular, acquiesced in by Counsel for the Respondent, and possibly by the failure of anyone to have in mind any assistance that could be drawn from Dunnachie No 3, which we conclude would have been material.
39.4 We repeat and adopt what was said in paragraph 46.6 of Sinclair Roche by reference to tribunal professionalism. We are satisfied that this is a case, where a tribunal has been put right and redirected, in which there can be the "presumption that it will go about the tasks set [it] on remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal". It will be important for the Tribunal, on the remission, to have an entirely open mind, based of course upon the findings it has already made, any further evidence it hears and the guidance of this judgment.