United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR SAM NEAMAN (of Counsel) (Who did not appear below) Instructed by: Messrs Crossland Solicitors 173 Curie Avenue Harwell Oxon OX11 0QG
For the Respondent	MS NAOMI CUNNINGHAM (of Counsel) Instructed by: Messrs Irwin Mitchell LLP Solicitors Imperial House 31 Temple Street Birmingham B2 5DB


 


SUMMARY

SEX DISCRIMINATION – Injury to feelings

Damages for injury to feelings for victimisation pitched at too high a level.

Recommendation that the employer send a letter of apology should not require a person to make a statement with which they disagree.


 


THE HONOURABLE MR JUSTICE WILKIE

Introduction

1. This is an appeal against certain remedies awarded to the Respondent, Mrs Blundell, in the form of compensation and a statutory recommendation, arising out of a unanimous finding by the Tribunal on liability that the Respondent was unfairly dismissed, succeeded in her complaint of victimisation on the grounds of sex discrimination and was dismissed in breach of contract.
2. The liability hearing had taken place on 7 days between the 5 and 13 of February 2008. The remedies hearing took place on 4 days namely the 12, 13, 14 and 27 January 2009 followed by two days in chambers, 16 February and 12 March 2009.
3. The compensation the subject of this appeal is the sum ordered to be paid in respect of victimisation namely £291,496.37. The recommendation was in respect of victimisation and was that the Appellant send a letter in terms set out in the order to the parents of pupils and teachers at the school.
4. The specific sums the subject of appeal are:

i) £22,000 for injury to feelings.

ii) £5,000 for aggravated damaged.

iii) Loss of earnings for various periods up until 15 February 2015 together with the consequential grossing up element.

5. In addition there is a cross appeal from the Respondent concerning the approach the Tribunal took to calculating her loss during the period 15 February 2010 until 15 February 2015.

The background facts and the liability judgment

6. The Respondent is a Roman Catholic who has lived in the Appellants' local area all her life. She was employed by them as a probationary teacher in September 1992 at the school at the age of 25 and remained employed there until her dismissal which took effect on 21 June 2007 (after an internal appeal) when she was aged 41.
7. She was employed, apparently without incident, until June 2003 when she announced her intention to take maternity leave from December that year. Arising out of difficulties between her and Mrs Assid, the head mistress, following upon that announcement she lodged a claim in the Employment Tribunal on 11 May 2005 claiming sex discrimination against the school and the head teacher. By judgment of the ET dated 14 February 2006 that claim was dismissed. The respondent appealed that decision to the EAT by notice dated 18 May 2006. A full merits hearing of the appeal was held on 13 February 2007. Judgment was given by the EAT on 10 May 2007 dismissing much of the appeal but allowing it in one respect.
8. The current proceedings were commenced on 2 January 2007. The Respondent complained that the head teacher had ostracised her from the time her first claim was concluded in December 2005 and that this escalated to bullying and harassment after the lodging of her appeal to the EAT in May 2006. The treatment culminated in a "feedback" meeting following a classroom observation of the Respondent's teaching by the head mistress in November 2006 when Mrs Assid told the Respondent that everything she had seen during the observation was inadequate, that she had very grave concerns, and that her future as a nursery teacher was under review. The Respondent went sick with stress related illness from 13 November 2006, within a few days of the feedback meeting.
9. In January 2007, whilst off sick, the Respondent, by chance encountered some parents of children at the school. When they approached her she suffered a panic attack and started to cry and told them she was being bullied by the management of the school. This precipitated a disciplinary hearing the outcome of which was her dismissal.
10. In the liability hearing the Tribunal made careful findings of fact in relation to a series of incidents complained of by the Respondent. In respect of a number of them the Tribunal decided against the Respondent. In particular they rejected her complaint of ostracism after the hearing of the first claim, her contention that the head set out to harass and find fault with her after the 18 May 2006 when her appeal to the EAT was presented, and her complaint about the head's handling of certain complaints made against the Respondent by certain teacher governors. However, the Tribunal did find proved a complaint that, in the Autumn term of 2006, Mrs Assid repeatedly demanded details of that complaint, between the Respondent and those two teacher governors, and concluded that it was by reason of a protected act. The Tribunal in paragraph 143 said as follows:

"…We consider that this was the first manifestation of conduct which appears to have been designed to ease the claimant out of the first respondent's employment. The chairman of the governing body is the person who appears to have been the main driver of the way that things progressed from here on…"

And at paragraph 146:

"…we draw the inference that the reason why the claimant was being pressed in this was…and the fact that she had previously brought proceedings against the school and had been pursuing an appeal in respect of those proceedings…"

In addition, and in connection with this, the ET found that the head's letter of 8 September 2006 was less favourable treatment by reason of the protected act namely: the Respondent's continuation of appeal proceedings in respect of her first ET claim.

11. The Tribunal also concluded that Mrs Assid's assessment of the Claimant's teaching at the monitoring session on 8 November and her feedback to the Claimant on that date constituted less favourable treatment by reason of one or more protected acts. The Tribunal concluded that it accepted the Respondent's evidence that the feedback was wholly negative, that the head told her that everything she had seen during the monitoring was inadequate, that she had very grave concerns and that the Claimant's future as a nursery teacher was under review. The Tribunal commented that this assessment had to be considered against the fact that the Claimant/Respondent was a capable and hard working teacher who had been told by the head in September that she had done a very good job the previous school year. The Tribunal concluded in paragraph 151 "that this assessment was deliberately fault finding", and at paragraph 152 it concluded:

"That the reason for this action is that the claimant was continuing the first proceedings against the respondents."

12. There were certain other incidents which the Tribunal considered and rejected the Respondent's contention that they supported her allegation of victimisation. However, the Tribunal had to consider the dismissal. In respect of that they concluded at paragraph 160:

"…the more we heard from the chairman of the governing body the more it became clear that his contribution was in many ways pivotal in moving down the line of action against the claimant…"

It went on to conclude at paragraph 162:

"We have come to the conclusion that the claimant was unfairly dismissed and that the dismissal was an act of victimisation by the first respondent…the real reason for the claimant's dismissal was because she had brought proceedings against the school and subsequently appealed against the decision made by the ET in the first claim and it was because of the appeal and the arguments presented in the appeal that she was dismissed."

The remedies hearing and decision

13. The Tribunal heard evidence from the Respondent and had a written witness statement from her. She described the impact of the Appellants' actions upon her in graphic terms. She explained that since her dismissal she had been invited for one job interview at a primary school in October 2007 but had not been successful. She gave oral evidence that she was studying for a diploma at Kingston University in the Autumn of 2006 but had stopped studying at the conclusion of the first year in about June 2007. The Tribunal had commissioned a joint expert report from a Dr Hallstrom, a consultant psychiatrist.
14. The Appellants called evidence, to which we will turn in a moment, but as far as the Respondent's evidence was concerned the Appellants argued, as noted at paragraph 29 and 30 of the remedies decision, that the Respondent's reliability as a witness should be treated with caution. The Appellants relied on what they said was her failure to disclose information relating to her application for employment at the primary school already referred to and her failure to mention to Dr Hallstrom that she was enrolled on the early years' diploma and an MA course at Kingston University as well as failing to mention that fact in her witness statement. They suggested on that basis that the Claimant's evidence - that even the most mundane things were a huge effort to her - should be treated with caution as it was entirely inconsistent with the Claimant undertaking a diploma and MA course of study at Kingston University which was also inconsistent with her assertion that she was unlikely to continue to work in education in the future. The Appellants argued that the Tribunal should reject the Respondent's evidence that she was only enrolled in that course until about June 2007. The Tribunal noted, however, that there was no evidence that the Respondent continued in that course beyond that date.

Injury to feelings award

15. The Tribunal dealt with this between paragraphs 59 and 63. They briefly described the personal suffering described by the Respondent and a medical report by a Dr Church. They also had regard to her demeanour during the course of the liability hearing and the remedy hearing. They described briefly the conduct which they had concluded, in the liability hearing, amounted to victimisation. They referred to the guidance in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 and, in particular, the description of the top band of compensation for injury to feelings between £15 to 25,000 to be awarded:

"…in the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the grounds of sex or race."

The Tribunal considered that this was a serious case and that there had been "conduct akin to a campaign of discriminatory harassment". They therefore concluded that the appropriate level of compensation for injury to feelings is £22,000.

16. Ms Cunningham for the Respondent says that the ET were entitled, having regard to the three elements of behaviour which they found constituted victimisation, the severity of those incidents themselves and the impact on the Respondent as observed by them in the course of two lengthy hearings, to assess the treatment they found to be victimisation as being "akin" to campaign of discriminatory harassment. Although the conduct was not of long duration this was because its culmination occurred within a matter of some 4 months. She also points out that the figures cited in Vento have to be adjusted upwards for inflation and refers to the case of Da'bell v NSPCC [2010] IRLR 19 where the EAT updated the Vento figures in the following terms:

"The top of the bottom band would be changed from £5000 to £6000. The top of the middle band would be changed from £15000 to £18000 and the top of the higher band would be changed from £25000 to £30000."

17. Mr Neaman for the Appellants accepts that the Tribunal was entitled to conclude that this was a serious case but argues that it did not fall within the top band which Vento reserves for the most serious cases. He drew our attention to the fact that, in Vento, the award for injury to feelings had been reduced from £50,000 to £18,000 in a case which he says, on any view, constituted far more serious acts of victimisation than the present. He underscored this point by reference to HM Prison Service v Salmon [2001] IRLR 425 where the extremely lengthy and vile treatment of the complainant was graphically described by the EAT. In that case the EAT concluded that an award of £20,000 did seem to it to be on the high side but they were not prepared to say that the award was so high as to be perverse. He suggests that the treatment meted out to the complainant in that case was very substantially more severe than the treatment in this case. He also referred to The Prison Service v Johnson [1997] ICR 275. In that case there had been a campaign of racial harassment by the complainant's fellow prison officers over a period of 18 months. An award was made of £20,000 for injury to feelings. The EAT commented that such an award was larger than any other reported award but it also recorded that it was the worst case that any of the three members of the EAT had encountered. It did not seem to the EAT that the award was grossly or obviously out of line with the general range of personal injury awards. If left to themselves the EAT would have awarded slightly less. Once again Mr Neaman suggests that the Johnson case is in a different league of seriousness from the victimisation found by the Tribunal in the present case.
18. In our judgment Mr Neaman's criticisms of the level of the award and how it was arrived at are valid. The victimisation was serious and undoubtedly had deeply unpleasant consequences for the Respondent. However, if the Tribunal had had regard to the cases of Salmon and Johnson to provide them with a benchmark against which to measure the appropriate level of compensation under this heading in our judgment they could not have concluded that this case fell within the top band nor that it merited an award of £22,000. In our judgment it fell fairly and squarely within the middle band as being a serious case. In our judgment, the appropriate level of compensation, having regard to the various authorities including the case of Da'bell, which was decided after the ET decision in this case, would have been one of £14,000. Accordingly we reduce the sum awarded under this heading from £22,000 to £14,000.

Aggravated damages

19. The Tribunal dealt with this issue between paragraphs 64 and 71. It paid particular regard to the Appellants' submissions on the appropriate approach to an award for aggravated damages, accepted those principles as accurate, sought to apply them and concluded that the grounds for aggravated damages were present. They relied not only on the acts of victimisation and their conclusions in respect of them, but also in the way that the proceedings at the remedy hearing had been conducted. They concluded that the Appellants had attempted to go behind the findings of fact made by the Tribunal in the liability hearing concerning her teaching abilities. The Appellants had called evidence from the head teacher, the previous head teacher, the deputy head teacher and a parent governor, whose evidence cumulatively was to the effect that they did not have confidence in her teaching and this had been the case from the outset of her employment. The Tribunal described this as "taking the gloves off" at the remedy hearing. The explanation given for not calling this evidence at the liability hearing being that they wanted to spare the Respondent from such criticism of her abilities as a teacher at that stage and did not want to damage her prospects of getting employment by revealing their true feelings on the subject.
20. It is to be noted that the letter of dismissal dated 21 June 2007 following the last internal appeal reads as follows:

" ..We would re-emphasise the findings of the dismissal panel which was that no criticism has been raised in relation to your teaching ability and as such a good reference would be provided by the school…the reasons for your dismissal is because you no longer have a relationship either with the head teacher or it would appear your fellow teachers judging by the submissions made by Mr Long…. "

The Tribunal had also had the benefit of the evidence at the liability hearing of the outcome of an Ofsted inspection on 30/31 January 2006 in which, not only was the school assessed as good, but the Respondent's teaching was also assessed as good. The ET also had evidence from Christine O'Brien, who was the Respondent's immediate line manager, who, in cross-examination, had stated that the Claimant was a "competent able teacher", that she considered her applications for positions at foundation leader grade (promotion) were appropriate and that she "stood as good a chance as anyone" of being successful in such an application. The Tribunal had, in the liability hearing, specifically found that the Claimant's abilities were fairly reflected in the Ofsted inspection as good. The Tribunal recorded that the Appellants said that the purpose of raising the issue of capability at the remedies hearing was not merely in order to "trash" the Respondent's reputation but was to seek to establish that a Polkey reduction should be made to any award as well as indicating that they had taken a deliberate decision at the liability hearing not to go into too much detail about the Respondent's ability as a teacher because they wanted to give her every opportunity of getting another job.

The Tribunal concluded that the way in which the remedies hearing had been conducted by the Appellants, and in particular the bringing of a battery of evidence effectively to undermine the previous conclusions of the Tribunal on capability, did have the effect of causing further offence to the Respondent, a matter which truly aggravated her injury to feelings. In our judgment, given the history of the matter, the findings which had previously been made of the deliberate nature of the course of conduct embarked upon by the Appellants with a view to forcing the Respondent out of its employment, in view of the way in which they changed their tune between the dismissal letter, the evidence at the liability hearing and their strenuous efforts on a number of fronts to criticise the Respondent's capabilities at the remedies hearing, notwithstanding the findings which had been made at the liability hearing, the Tribunal was fully entitled to conclude that the conditions for the award of aggravated damages were met and that an award of £5,000 was appropriate. It therefore follows that we reject this ground of appeal.

General damages

21. There are a number of grounds of appeal which address this figure. The first is that the calculation of future loss of earnings was posited on an arithmetically erroneous basis because the continuing level of loss was erroneously calculated as amounting to £29,000 per annum whereas it would be significantly less. The Respondent accepts that this is a valid point. We uphold the appeal on this ground. The parties have not been able to agree what the appropriate figure should be. In the light of our conclusions on the other grounds of appeal, we remit this case to the same Tribunal to calculate the loss of future earnings appropriately.
22. Grounds 4 and 5 are linked. It is said that the Tribunal erred in its approach to calculating the period of loss of earnings and that it erred in coming to a period of 5 years. At paragraphs 84 to 95 the Tribunal addressed this issue. They concluded that, even without the victimisation, unless there had been a significant improvement in the Respondent's relationship with the head teacher her health would have continued to deteriorate and she would have left her employment. Thus they concluded that her employment with the school would not have lasted until she reached retirement age had there been no victimisation. However, they went on to conclude that the actuality of her leaving would have been significantly influenced by the chances of finding alternative employment. They went on to consider how long, by reason of the discrimination, she would be unable to work, as they concluded that it was up to that point that she should receive compensation. They then went on to find that she was currently unfit to work but that she would have recovered sufficiently to work in some capacity within a year. They reached a conclusion on the level of employment and the likely level of earnings. They went on to conclude that, thereafter, it would be necessary for her to rebuild her confidence over time and to work her way up to the sort of positions that she would have aspired to previously. In that respect, they considered that an award for a period of 5 years from the point at which she was fit to work was appropriate. In so doing the Tribunal expressly rejected the view of the joint expert Dr Hallstrom that she would never be able to obtain work as a teacher again.
23. Mr Neaman queries whether the approach adopted by the Tribunal was the correct one. He says that it was an inappropriate exercise for the Tribunal to embark upon. He says that, having decided that she would have left the Appellants' employment at some point, for the reasons given, that point should be the end point for the period for which she should be compensated. He says it was an error to consider the extent to which that period of time might be affected by the victimisation. In our judgment that is illogical. The Tribunal made a clear finding that she would only have left the employment of the Appellants once she had suitable alternative employment to go to. It is obvious from the remainder of this part of the Tribunal's reasoning that such employment would be in teaching. It was, therefore, appropriate, in our judgment, for the Tribunal to attempt to assess how long it would be, given the victimisation and its impact, before the Respondent could reasonably be expected to have recovered her equilibrium sufficiently to be in the market for a teaching position equivalent to the one from which she had been dismissed. In our judgment it is plain from the Tribunal's reasons that this is the exercise upon which they were embarked and that it was the appropriate exercise.
24. Having rejected the opinion of the joint expert that she would never achieve such a level of recovery the Tribunal had to exercise its judgment in the light of all that they knew about her history, about her abilities, about the impact of the victimisation upon her and upon what she had been doing in the meantime, including her successful completion of the diploma at Kingston University and her inability to continue that course through to the second year at the end of which an MA would have been awarded. In our judgment the Tribunal cannot be criticised for coming up with the figure of 5 years from the point at which she would be able to re-enter the job market at a level which the Tribunal described. In our judgment the Tribunal could not be criticised for failing to carry out any more sophisticated exercise of gradation between the 1 and 5 year period. In effect this is a perversity challenge and the Appellants fall a very long way short achieving perversity. Accordingly we reject those two grounds of appeal.
25. Linked to this heading, however, are two other grounds. The first is that the Tribunal failed to conclude that the Respondent had in fact completed her MA at Kingston University and, therefore, that she had lied to the Tribunal when she had indicated that she had been unable to do so. There were certain straws in the wind which enabled the Respondent to put forward arguments why her credibility in this respect should be regarded with some caution. There was some reference in the job application which she made in October 2007 to her currently studying and there was some reference in her medical notes to the doctor who examined her in May 2009 noting that she was, at that time, studying. However, as the Tribunal points out, not only did they have her oral evidence on the point, there was no evidence from any source to suggest that she had continued with the MA part of the course at Kingston University during the academic year 2007-8 beyond the straws in the wind which the Tribunal considered. The Tribunal was, in our judgment entitled to describe it as providing no evidence that she had completed the MA course. Mr Neaman informed us in the course of the argument there are public records from which the Appellants were able to find out that she had not completed an MA thesis which would be a necessary part of any such degree.
26. In our judgment this is another perversity argument. The Tribunal was aware of the arguments and the evidence supporting them but came to its conclusion on the evidence to accept what the Respondent said about this matter. They were entitled so to do. Accordingly this ground does not succeed.
27. The second concerns the failure of the Tribunal to rule upon an application for third party disclosure to be made by Kingston University on the issue whether and if so for how long and with what result the Respondent was a student during the academic year 2007-8. The Appellants were aware that there was some issue about the Respondent having attended Kingston University during that academic year. It was able to cross examine her on the subject of her studies at that university at the remedies hearing. They had taken no steps to seek third party disclosure from Kingston University in order to nail this point in advance of or during the remedies hearing which encompassed 4 days starting with the 12 January and ended with the 27 January. There was no application made by them for third party disclosure until several weeks after the last of those dates. The Tribunal never formally responded to the application the Appellants made, even though it was made prior to the first of the two dates when the Tribunal met in chambers to consider its decisions. That is unfortunate and should not have happened. Given the history of this litigation, the way in which, at the outset of the remedies hearing, the Appellants had made an application for disclosure of medical records and the Tribunal had commented that this application was very late in the day, in our judgment the implicit decision by the Tribunal to refuse to order any further disclosure after the end of the remedies hearing was perfectly within its case management powers and we reject this ground of appeal.
28. We now turn to the cross appeal because it concerns compensation. The Tribunal, in making an award for loss of earnings for the period after 14 February 2010 until 14 February 2015, stated at paragraph 121:

"We have used gross figures and therefore there is no need to carry out any grossing up exercise as this sum has been awarded having regard to those figures."

It is pointed out by Ms Cunningham that this is the wrong way to go about the exercise. It is well established that the appropriate course is to calculate the net loss of earnings during the relevant period and then to gross up that sum in order to take account of her tax liability on the Tribunal's award. The Appellants do not dispute that this is the appropriate way of doing it but suggest that the Tribunal was taking a broad brush approach and that the decision in respect of that period should stand. In our judgment there is a right way and a wrong way of doing these things. The Tribunal failed to undertake the exercise in the correct way for this particular period, even though it undertook the exercise in the appropriate way for the earlier period. This cross appeal succeeds and should be remitted to the same Tribunal for it to carry out that exercise in the proper manner.

The recommendation

29. The Tribunal were asked to make a recommendation pursuant to section 65(1) of the Sex Discrimination Act 1975 which provides that, where a complaint is made out and the Tribunal considers it just and equitable, it shall make:

"…(c) A recommendation that the respondent takes, within a specified period, action appearing to the Tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates."

The recommendation sought by the Respondent was that the Appellants should send a letter to all the parents and the teachers at the school in terms which included:

"The school, Mrs Assid and Mr Hughes wish to apologise unreservedly for the anguish they have caused Mrs Blundell since September 2006 and in Mrs Assid's case for criticisms of Mrs Blundell's teaching which she now accepts were unfounded. Mrs Assid confirms that Mrs Blundell was throughout her career at St Andrews a capable and hard working teacher."

30. At the hearing of the matter before the Tribunal this issue had arisen at the end of the written submissions on behalf of the Respondent. The Appellants argued against any such letter being appropriate. The Appellants, though not descending into particular criticisms of the draft, suggested that any such letter should be "depersonalised". The Tribunal rejected those arguments and made the recommendation.
31. In the appeal the Appellants make two points. The first is that the Tribunal erred in making a recommendation that the contents of the letter should include statements attributable to Mrs Assid which it must have known Mrs Assid could not in good conscience make because she did not in fact agree with them even though the Tribunal had found against her on these issues. They were: that she accepted that criticisms had been unfounded and that she held the view that, throughout her career at the school the Respondent was a capable and hard working teacher.
32. The second ground is that the recommendation was erroneously wide, insofar as it was to be sent to all parents of children currently at the school. It was argued that the events the subject of the letter had occurred several years previously and had not been publicised at the time other than by the Respondent herself.
33. Ms Cunningham for the Respondent says that neither of these arguments were raised before the Tribunal and that these grounds ought not to be entertained by this Tribunal pursuant to the strict approach taken by the appellate courts as exemplified in Kumchyk v Derby City Council [1978] ICR 1116 and in subsequent cases.
34. In our judgment we should entertain this part of the appeal. It is clear that the whole issue of the recommendation was an issue at the Tribunal and, whilst it may be that the fine tuning of the draft was not specifically addressed, the argument that the letter be depersonalised is sufficiently close to the point now argued for us to accept that it is not new but a refinement of an argument presented at the Tribunal.
35. In our judgment the second ground of appeal does not succeed. True it is that to send a letter now to parents, some of whom would have no knowledge of the Respondent or the events, may be said to be not as precisely directed as it could be. However, we are told that children at this school are in attendance for some 7 years. The Respondent was responsible for the youngest of them, the nursery class. Accordingly a substantial proportion of the children now at the school would have been at the school then and would probably have been taught by her. Furthermore there will, in addition, be siblings of children who may since have left the school whose parents will have lived through these events. Furthermore, whatever may be the rights and wrongs of the press publicity which the case had at the time, the Appellants, after the liability hearing, took the step of writing to all the parents and teachers taking issue with the findings on liability and indicating, as was the case, that they were seeking to appeal those findings, an appeal which failed. It appears that there was no corrective letter to parents and teachers pointing out that the appeal had failed and that therefore the liability judgment was upheld. In our judgment, against that particular background, it was wholly appropriate for the Tribunal to order that the Appellants be recommended to set the record straight by sending to parents and teachers a letter pointing out the outcome of the case. Accordingly this ground does not succeed.
36. However, in our judgment, there is merit in the points made in respect of the contents of the letter insofar as it contains recommendations that Mrs Assid is required to make statements with which she does not agree. However wrongheaded it may be of her, we accept that, in good faith, she does not believe that the criticisms she made were unfounded, nor does she believe that Mrs Blundell was, throughout her career, a capable and hard working teacher. In our judgment the letter should be altered so as to delete the words "and in Mrs Assid's case criticism of Mrs Blundell's teaching which she now accepts were unfounded" and deleting the words in the next sentence "throughout her career".
37. To this extent accordingly we uphold the appeal in respect of the recommendation.

Summary

38. The appeal succeeds in respect of the level of compensation for injury to feelings which is reduced to £14,000. It also succeeds on the arithmetical basis of the compensatory award and in respect of the wording of the recommendation. The other grounds of appeal are dismissed. The cross appeal succeeds.
39. We order that the letter recommended to be sent to current parents and staff be varied in accordance with paragraph 36 above.
40. We order that the case be remitted to the same Tribunal for it to recalculate the compensatory award in the ways indicated above where the appeal and cross appeal has succeeded after hearing, if need be, further argument.