United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR EDWARD LEGARD (of Counsel) Instructed by: Legal Services Department Durham County Council County Hall Durham DH1 5UL
For the Respondent	MR JOHN FALKENSTEIN (of Counsel) Instructed by: Messrs Askews Solicitors 4-6 West Terrace Redcar Cleveland TS10 3BX


 


SUMMARY

VICTIMISATION DISCRIMINATION – Protected disclosure

PRACTICE AND PROCEDURE – Review

This was an appeal against a review decision of the Employment Tribunal reached after a very long history of numerous hearings between the parties. The Respondents had earlier been found to have subjected the Claimant teacher to detriment for making protected disclosures. At a remedies hearing the ET were invited by the Respondent not to award future loss but to make recommendations with which the Respondent would comply. The ET made recommendations, inter alia, that the Respondent should restore to the Claimant the leadership role of which she had unlawfully been deprived and said that, if that recommendation was not complied with, the Claimant could restore the future loss issue by way of review.

The recommendation was not complied with; the leadership role was not restored. Meanwhile the Claimant was dismissed for redundancy and issued a second claim based on that dismissal. The ET agreed to review the issue of future loss arising from the protected disclosure claim; and in doing so they found that the Claimant, had her leadership role not been unlawfully taken away, would have scored higher in the redundancy selection process and would not have been selected for redundancy.

The Respondents appealed against the review decision on multiple grounds; all failed. The ET had not re-scored the selection exercise or substituted their view of the scoring for that of the employers but had rightly carried out a different task, that of assessing how many more marks the Claimant would have received in that exercise had she had her leadership role. Nor, in so doing, were the ET deciding the second claim. They were deciding an issue which arose on the first claim; and in the course of doing so, neither that approach or conclusion nor case management decisions made en route nor their decision to award costs to the Claimant were in error of law.

HIS HONOUR JEFFREY BURKE QC

The History

1. This is an appeal by Durham County Council and the Governors of West Cornforth Primary School, whom we will call "the Respondents", as they were before the Employment Tribunal, against the Judgment of the Employment Tribunal sitting at Newcastle-upon-Tyne and presided over by Employment Judge Rogerson, which was sent to the parties as a reserved Judgment on 9 February 2011, after a review hearing held in November 2010.
2. While normally at this preliminary stage of our Judgment we would describe the orders made by the Employment Tribunal which are the subject of this appeal, in this case, those orders will not be readily understood unless the history of the lengthy and, to some extent, tortuous litigation between the Respondents and Mrs Hall, the Claimant, is explained first. We will therefore endeavour to set out that history now; even in outline, it will take us some time to do so.
3. Mrs Hall was employed by the Respondents – for present purposes, no one has sought to distinguish between them, and we will not do so either – as a school teacher at West Cornforth Primary School in County Durham from 1994. There is no suggestion of any problem relating to her work there until, in 2002, a new headteacher, Mrs Sarsfield, was appointed on the retirement of her predecessor. The Tribunal found that Mrs Hall was a very dedicated and committed teacher.
4. Unhappily, to put it neutrally, the Claimant and Mrs Sarsfield fell out in March 2004; and that led to a sequence of events over the next two years or so which was fully considered by the Employment Tribunal in the course of an 11-day hearing between November 2007 and March 2008. By a claim presented in March 2007, Mrs Hall claimed that she had, between March 2004 and December 2006, made 12 protected disclosures, to one or other of the Respondents, and that she had been subjected by the Respondents, on the grounds of making such disclosures, to detriment in numerous different respects between March 2004 and January 2007. She was, however, at the date of the hearing continuing to work as a teacher at the school.
5. The Tribunal decided, in a Judgment sent to the parties on 21 May 2008, (1) that 7 of the disclosures relied upon by the Claimant were protected disclosures within part IV(a) of the Employment Rights Act 1996 (i.e. were qualifying disclosures within section 43(b)(i) of that Act, which were made by the Claimant to her employers in good faith within section 43(c) of that Act), and (2) that in 18 respects the Respondents had subjected the Claimant to detriment contrary to section 47(b) of that Act. It is not necessary for present purposes to set out the details of either the disclosures or the detriments to which the Claimant was determined to have been subjected as a result. The facts found by the Employment Tribunal reveal a sad story over a sustained period of unreasonable, high-handed and insulting conduct towards the Claimant by the Respondents. Those adjectives are taken from the Tribunal's own assessment of the nature of the Respondents' actions.
6. It is, however, necessary to refer to two individual acts of detriment found by the Tribunal to have occurred as a result of the Claimant's disclosures, namely:

(1) Failure on the part of Mrs Sarsfield to support the Claimant's application for an NPQH qualification, which is a qualification needed by a teacher who aspires to train as a headteacher, the gaining of which was the next career step for the Claimant; and

(2) In September 2005, removing the Claimant from the school leadership team and from her position as literacy leader.

7. The next step in the proceedings was a remedies hearing which took place over two days before the same Tribunal in October 2008 and was the subject of a further reserved Judgment, sent to the parties on 8 December 2008. By that Judgment the Employment Tribunal set out the following conclusions:

(1) There should be an award for injury to feelings of £20,000 (paragraph 8.3);

(2) There should be an award of aggravated damages of £10,000 (paragraph 8.4);

(3) The Claimant had, on the Tribunal's findings, lost additional payments, called TLR payments, as a result of her removal from her leadership role, which she would, but for that detriment, have received; the Tribunal therefore made an award of £4,614 representing that loss up to date.

8. However, no award was made in respect of the Claimant's claim to future loss of TLR payments because the Respondents had invited the Tribunal to make recommendations for the future to obviate or reduce the adverse effects of their victimisation of the Claimant (see paragraph 8.6 of the remedies Judgment). It was acknowledged that the relevant part of the 1996 Act, unlike the statutory provisions in the case of race and sex discrimination, did not statutorily provide for the making of recommendations or for the awarding of further compensation should a recommendation made by a Tribunal not be complied with; but the Tribunal decided, in the light of the Respondents' invitation to them to make such recommendations and the Respondents' assurance that such recommendations would be complied with, to act as asked. They have not been criticised, and should not be criticised, for so doing. Restoration of the Claimant to her previous role was plainly preferable to attempting to assess, in terms of future loss, for how long she would be without that role.
9. Accordingly, responding to the invitation made by the Respondents, the Tribunal made four recommendations, which are set out between paragraphs 8.6 and 8.7 of their remedies Judgment. The third such recommendation was in these terms:

"The claimant should be reinstated as Literacy Leader with TLR2 payments, and a planned handover of responsibilities should be agreed as soon as practicable. She should also be supported in making a NPQH application as soon as possible."

10. Having made that recommendation and having accepted the Respondents' assurance that their recommendation would be followed, the Tribunal did not make an award for future loss of earnings, but said, at paragraph 8.1, that, if the Respondents were not to follow their recommendations, the Claimant could apply for a review of the award, which had been made on the basis that the Respondents would comply with the recommendations.
11. The Tribunal further awarded the Claimant £15,000 compensation for loss of career prospects (paragraph 8.2) and £2,500 for psychiatric injury. There was no appeal by the Respondents against the Employment Tribunal's primary Judgment or their remedies Judgment.
12. However, the Respondents did not comply with those recommendations, or at least with recommendation 3. That being so, the Claimant applied to the Employment Tribunal for a review of the award for loss of TLR payments – so that an award for future loss of those payments could be made – and for a review of the award for compensation for future loss more generally. The Respondents also applied for a review; they sought a review of the Employment Tribunal's award to the Claimant of past loss of TLR payments and of the recommendation that the Claimant should be reinstated as literacy leader with TLR payments. The basis of that application is not set out in the Employment Tribunal's Judgment on the application, but it was, as we understand it, the Respondents' case that it was not possible for them to disrupt the employment structure of the school by giving effect to recommendation 3 and never had been, although there is no suggestion that any reservation to that effect was made when the Respondents proposed to the Tribunal at the remedies hearing the making of recommendations to obviate or reduce the adverse effects of their acts of victimisation, and, as a result, headed off an award of future loss of TLR payments. The Respondents also requested a review of the Employment Tribunal's calculation of interest.
13. The same Tribunal heard those applications on 31 April 2009, and, by a Judgment dated 15 May 2009, decided as follows:

(1) That the Respondents' application for a review of the Tribunal's Judgment of the TLR award recommendation (i.e. recommendation 3) was refused;

(2) That the Respondents' application to review the interest calculation was granted; and interest was then recalculated;

(3) The Claimant's application for a review was granted; and there would be a review of the Claimant's claim for future loss of TLR payments from 2008 onwards, if the Claimant confirmed it was her intention to proceed with the claim within 14 days of the date of the Judgment, and of the Claimant's claim for future loss of career, again, if the Claimant confirmed that she intended to pursue that claim within 14 days.

14. On 21 July 2009 there was a case management discussion before a different Employment Judge at which procedural orders were made; it was recorded that there were two main areas of dispute to be decided at the review hearing. The first was whether the Respondents would be entitled at that hearing to justify their decision not to comply with the third recommendation. The second arose because the Claimant had now received notice of dismissal on the grounds of redundancy, to expire on 31 August 2009, and was intending as a result to issue fresh proceedings. She claimed that the Respondents' failure to comply with recommendation 3 meant that, in a redundancy selection exercise, she had come out with a lower score than she would and should have done had that recommendation been complied with. Thus the Claimant sought to have future loss assessed at the review hearing on the basis of new facts, namely her pending dismissal, which, on her case, was attributable to the Respondents' treatment of her in breach of section 43(b) of the 1996 Act. The Respondents' position was that the new facts gave rise to a new claim, which should be considered on its own, and that the redundancy dismissal would break the chain of causation arising from the detriment of removing the Claimant from her status as literacy leader.
15. On 24 November 2009 there was a Pre-Hearing Review before Employment Judge Rogerson alone. At that hearing the Employment Judge concluded:

(1) The Respondents would not be permitted to put forward justification for failure to reinstate the Claimant to her leadership role and to restore her TLR payments and that the review hearing would include an assessment of the appropriate level of compensation in the light of the Respondents' failure to comply with recommendation 3.

(2) It would be open to the Employment Tribunal at the review hearing to consider whether the dismissal was a consequence of the earlier acts of less favourable treatment to which the Employment Tribunal had originally found the Claimant to have been subjected. The Employment Judge considered the combination of the review hearing with the Claimant's second set of proceedings, which the Claimant, as was clear, proposed to issue on the basis that her dismissal for redundancy was unfair. The Claimant was in favour of consolidation; the Respondents were strongly against it. According to paragraph 21 of the Judgment, Mr Legard, who has appeared for the Respondents throughout – as has Mr Falkenstein on behalf of the Claimant – stated that he had strong objections to the same Tribunal dealing with the redundancy claim, without providing any basis for those objections. The Employment Judge concluded that she would not decide on the consolidation issue at that stage.

16. On 21 April 2010 there was yet another case management discussion, by telephone, to which both counsel contributed. The Respondents had complained that the Claimant's witness statement before the review hearing raised new allegations of victimisation or detriment, prior to the dismissal, which occurred after the original claim had been lodged and had not been canvassed at the original liability hearing; they submitted that such new allegations should play no part in the review and that, if they did, they would have to call a number of witnesses to deal with them. We suspect that those new allegations were those which were subsequently set out in detail in the Claimant's second claim form. The Employment Judge determined that such new allegations and evidence should play no part in the review process. There was a dispute, too, about an expert report as to future loss of earnings and pension which the Claimant wished to deploy; once the Respondents had seen it, an order was made permitting its use by the Claimant at the review hearing.
17. This history discloses that, before the review hearing proper, there were four hearings between the parties, with counsel representing each side on each occasion, namely a hearing on the applications for review, two case management discussions and a Pre-Hearing Review. We feel compelled to express the hope that that is a sequence of hearings that has rarely happened in the past and will rarely happen in the future, in a jurisdiction which, as the Court of Appeal said in British Aerospace v Green [1995] IRLR 433, is intended to produce a swift, informal disposal of the claims before it. It is important to state that neither party has at any time sought to appeal any of the decisions made by the Tribunal at any of the numerous hearings, the history of which we have described. In particular, the Respondents have not sought to appeal against the making of recommendation 3, against the rejection of their application for a review of the decisions made at the remedies hearing, or against any of the Tribunal's determinations as to the scope of the review hearings.

The Review Hearing

18. The history now at last moves on to the review hearing itself, which is of course the subject matter of this appeal. It took place on 23-25 November 2010 before Employment Judge Rogerson and one of the two lay members who had previously sat throughout, Mr Sanderson; the other lay member, Mrs Davison, was not available. The parties agreed to the Tribunal's proceeding as thus constituted. The Judgment was, once again, reserved and was sent to the parties on 9 February 2011, two years and eight months after the original liability Judgment and nearly four years after Mrs Hall presented her first claim.
19. At the outset of the hearing, Mr Legard on behalf of the Respondents asked the Employment Tribunal to dismiss the review hearing on the basis that compensation for loss of career was sought in the Claimant's second set of proceedings, that the compensation claims for future loss in the two sets of proceedings therefore overlapped, and that the question of compensation for future loss should be considered in the course of the second proceedings.
20. The application was opposed by Mr Falkenstein on behalf of the Claimant; and the Employment Tribunal rejected it on the basis that the scope of the review had been fixed for some time and that the balance of prejudice was in favour of continuing. The Tribunal said this at paragraph 17:

"Substantially also, the review deals with a different point to the new claim of unfair dismissal and victimisation in relation to the redundancy. The question for this tribunal was one of causation only and it was not necessary for this Tribunal to make any findings of fact regarding any of the allegations made in the second claim which could prejudice that claim. We noted that it was only the respondent that was arguing prejudice not the claimant and we could not see how either party would be prejudiced if we proceeded with the review on the basis that had been determined at a PHR - the scope of the review had been identified for some time without any dispute. In relation to overlap if we were to award compensation, the basis of any award would be made clear so that if any subsequent claim was successful there would be no double recovery. In our view greater prejudice would be caused to the claimant by delaying further and not dealing with the review of remedy which had arisen solely in consequence of the respondent's failure to comply with the Tribunal's judgment on remedy."

21. We lay emphasis on the last sentence in that paragraph. It is clear from paragraph 19 of the PHR decision, which the Tribunal repeated at paragraph 11 of their review Judgment, that the scope of the review indicated the possibility, as the Claimant was seeking to establish, that the selection of the Claimant for redundancy and her consequent dismissal, and therefore whatever loss arose therefrom, was caused by the Respondents' failure to reinstate the Claimant to her leadership role and to pay her TLR payments, contrary to recommendation 3, with which, of course, the Employment Tribunal had expected the Respondents to comply.
22. Thus, in contrast to the position at the PHR, when the Claimant was submitting that the two sets of proceedings should be consolidated and the Respondents were objecting to it, the Respondents were now submitting that the review should be dismissed because of the overlap which they described and the Claimant was desirous of continuing. This submission was made despite the determination of the issues to be decided at the review hearing at a time when it was known that a second set of proceedings was to be issued (it was issued very shortly after the hearing and before the Judgment, in December 2009).
23. That application was rejected; the hearing continued. The Tribunal heard evidence from the Claimant, from Mr McNaught, her expert witness, and from Mrs Arnett, team leader of employee relations at the County Council. The Employment Tribunal found that a staff reduction exercise had been decided upon on 23 January 2009, and that a selection pool was identified on 27 February 2009, consisting of the teaching staff but not the Head and Deputy Head. Selection criteria were established, which were said to be standard. The assessment of individuals against the named criteria was to take in the period of September 2007 to April 2009. The Claimant had requested that the assessment period be extended backwards to take in the period when she still had responsibility as literacy leader; that was not permitted.
24. Applying the criteria without any allowance for the responsibilities of which the Claimant had been, according to the Tribunal's original Judgment, deprived in breach of her statutory right not to be victimised for making protected disclosures, the scoring of the teachers in the pool against the criteria produced the result that the Claimant was at the bottom with 22 points. As a result the Claimant was notified on 6 May that she would be dismissed for redundancy; and her subsequent appeal failed.
25. The Tribunal did not begin to examine the fairness of the selection criteria or whether, without any adjustment to the criteria or change in their application to allow for the reduction of the Claimant's responsibilities, the scoring of the Claimant or of any of the other teachers was erroneous. They concentrated specifically on an examination of the scoring for the purpose of considering the Claimant's case, which was summarised at paragraph 32 of the Tribunal's Judgment in these terms:

"32. It was the claimant's case that if she had not suffered the unlawful acts of the removal of the position as literacy leader and if there had not been a failure to support her application to NPQH1 she would have accrued 45 points and 16 ranking points. Mrs Arnett in her witness statement states at paragraph 12 that:

'If she had been credited with a literacy leadership role within the specified period she would have received a maximum of one more point.'"

26. In summary, the issue which the Tribunal were considering was what would have been the Claimant's score if there had not been a failure to support her NPQH application and if the removal of her position as literacy leader had not happened.
27. Considering the evidence for that purpose, the Tribunal found that, on the five criteria, if the Claimant had not suffered those two detriments, she would have scored points which would have put her in third position out of the eight teachers in the pool, and that she would, therefore, not have been selected as one of the two teachers to be made redundant (see paragraph 44 of the Judgment).
28. The Tribunal said, at paragraph 53:

"We concluded that the claimant's selection for redundancy was caused by the failure of the respondents to implement the recommendations to restore the claimant to literacy leader and to support her NPQH and also the failure to award her TLR2 payments and was a consequence flowing from the earlier acts of victimisation."

29. At paragraph 54 the Tribunal rejected the Respondents' Polkey v A E Dayton Services Ltd [1987] IRLR 503 argument that the Claimant had lost the trust and confidence of her colleagues and would have been dismissed in any event; they said that there was no evidence to support that contention. At paragraph 55 the Tribunal rejected an argument that the Claimant had failed to mitigate her loss.
30. However, the Tribunal did not proceed to make any award for future loss of earnings, either on the basis of future loss of TLR payments or otherwise. They concluded that neither party had provided an adequate schedule or counter-schedule of loss and indicated that they would give directions as to the provision of schedules before a yet further hearing.
31. We will refer to the Tribunal's decision as to costs later when we come to the ground of appeal which attacks that decision.
32. Pending this appeal hearing, neither the outstanding assessment of future loss (or of costs) nor the Claimant's second claim has moved forward; there appears, sensibly, to have been an informal pause pending the outcome of this appeal.

The Notice of Appeal

33. The Notice of Appeal contains seven grounds. In the light of the length of this Judgment, which we regret but have not been able to avoid, it is perhaps helpful to set out those grounds here, as briefly set out in the Notice of Appeal, so that they can be more easily referred to. They are:

"Ground 1

The Tribunal's finding that the Claimant's selection for redundancy in August 2009 was caused by the earlier acts of victimisation identified in the 2007 action was illogical, perverse; unexplained; wholly unsupported by the evidence and not 'Meek' compliant. Alternatively the Tribunal fell into error by unlawfully substituting its view for that of the selection panel.

Ground 2

The Tribunal was wrong to refuse permission for the Respondent's witness (Mrs Arnett) to comment upon various assertions made by the Claimant within the body of her witness statement (by way of supplemental questioning).

Ground 3

In conducting its own re-scoring exercise, the Tribunal trespassed upon the facts and matter relevant to the second claim despite its stated assertion to the contrary.

Ground 4

The Tribunal was wrong to base its findings on the assumption that the Claimant had not received support in her National Professional Qualification for Headship ('NPQH') application.

Ground 5

The Tribunal erred in law by permitting the use of the review procedure to determine the cause or principal cause of the Claimant's redundancy. Alternatively the Tribunal erred in law by refusing the Respondents' application to dismiss the review at the outset of the hearing on the basis that (a) it would constitute an improper use of the review process and (b) the review would inevitably entail evidential 'trespass' on matters relevant to the second claim.

Ground 6

The Tribunal's conclusion that there was no evidence to support a breakdown in trust and confidence as between the Claimant and (First) Respondent was erroneous alternatively perverse.

Ground 7

In awarding costs against the Respondents the Tribunal failed to apply "McPherson" principles. Alternatively the decision was manifestly unjust and perverse."

34. In this section we propose to address those grounds in the above order, save that it is logical and convenient to take ground 4 after ground 5. We have set out earlier in this Judgment the Tribunal's conclusion that, when the pool of teachers was scored against the Respondents' selection criteria, the Claimant, had she been restored to her position as literacy leader, would not have fallen within the two lowest-ranked positions and therefore would not have been selected for redundancy.

Ground 1

35. By this ground of appeal Mr Legard attacks that conclusion as having been reached in error of law. He identified the following errors of law:

(1) There was no or no sufficient analysis of the scores that the Claimant would have received if she had been restored to her position as literacy leader;

(2) The Tribunal assumed without evidence that the two teachers who scored highest on criterion 1 did so because of their leadership positions;

(3) The Tribunal had made the mistake of substituting their own view of the scoring exercise for that of the Respondents, a mistake that had been held in Martin v Marks & Spencer PLC [1998] IRLR 326 to have been an error of law;

(4) The reasons given by the Tribunal for their conclusion as to the scores that the Claimant would have achieved had she been restored to her leadership role were insufficient to inform the parties why, on that issue, they had won and lost (they were not Meek v City of Birmingham District Council [1987] IRLR 250 compliant, i.e. they did not satisfy the basic requirements for reasons as set out in the decision of the Court of Appeal in Meek).

36. Mr Legard submitted, in conclusion as to this ground, that the Tribunal had adopted an inherently unsafe approach to matters, all of which would fall to be decided in the second claim, which he described as overriding.
37. Mr Falkenstein reminded us both in general terms and specifically in relation to this ground of appeal of the need for the EAT, as an appellate tribunal, to act only on what were true points of law and to reject attempts by the Respondents to re-argue the facts. He drew our attention to the high threshold required for a perversity argument to succeed and to the lack of any proper particulars in the Notice of Appeal of perversity. He submitted that the Respondents were, in ground 1, seeking to dress up as issues of law what were properly issues of fact. The Tribunal, he argued, were not seeking themselves to carry out or re-examine the selection exercise carried out by the Respondents but were, consistently with the issues specified at the November 2009 hearing as being for determination at the review hearing, considering whether if Mrs Hall had not been deprived of the literacy leadership post, she would have avoided selection for redundancy. With that purpose in mind, the Tribunal had properly analysed that the two teachers who had scored high marks on criterion 1 were in leadership posts; it was legitimate for the Tribunal to infer from that that the Claimant would have achieved scores in the same area as those two teachers if she too had the leadership post of which she had been unlawfully deprived. The Tribunal's approach contained no error of law and was supported by adequate reasons.
38. In our judgement, the Respondents' approach to this ground of appeal and to the Employment Tribunal's Judgment more generally was based, as was indicated by Mr Legard's last point under this ground, on a desire to prevent the Tribunal from adjudicating on the issue of loss caused by the Claimant's dismissal, which they preferred to have assessed – if at all – in the context of the second claim and by a differently constituted Tribunal; hence their application at the beginning of the review hearing that the Claimant's application for a review should be dismissed on the basis that future loss of earnings post-dismissal should be addressed only under the second claim. However, it was entirely clear to the parties from the Tribunal's Judgment on the Pre-Hearing Review of 23 December 2009 that, whether the Claimant's selection for redundancy and consequential losses flowed from the earlier acts of less favourable treatment found by the Tribunal in the first claim, and the Claimant's claim for future loss of earnings, taking into account the Respondents' failure to restore her to the position of literacy leader and to give her TLR payments, were to be decided at the review hearing; see paragraphs 1(2) and (3) of that Judgment. By the time that Judgment was sent out, the second claim had been presented for about a month; but the Respondents neither sought to appeal against the PHR Judgment nor to seek to have it reviewed in the light of the issue of the second claim until the Claimant made her application for a review. The issue of the second claim was in any event anticipated by the Respondents at the PHR (see paragraph 12.3 of the December 2009 Judgment).
39. Of course, if the Respondents can establish errors of law such as those which they assert to have been made, their motivation for seeking to establish is irrelevant. It is, however, valuable to have the background in mind, particularly when the Respondents' submissions were openly based on an attempt to have issues of future loss addressed as part of the second claim despite the Tribunal's earlier and unappealed decisions.
40. In any event, in our judgement the errors of law that the Respondents seek to establish are not made out. The evidence was, it is undisputed, that the two teachers with the highest points on criterion 1 did have leadership roles. There was no evidence that the Claimant, if she had been restored to her leadership role, would not have gone on the necessary courses or would not have taken any training steps required to sustain her in that role; the Tribunal had earlier described her as a very dedicated and committed teacher. The Respondents did not adduce any evidence that a comparison between the Claimant, had she been in her leadership role, and the two teachers who were in such roles was inappropriate. In our judgement, it was open to the Tribunal, in seeking to decide what the Claimant would have achieved had she been restored to her leadership role in terms of her scores, to rely on scores that the two teachers who did have such roles had achieved. We discern no shortfall in analysis that could amount to an error of law.
41. Nor, in our view, did the Tribunal make any unwarranted assumptions about why those two teachers obtained the scores on criterion 1 that they did. There was no evidence that any other teachers who were in the pool had leadership roles. We consider that the Tribunal, on this issue, reached a conclusion which was open to them on the evidence.
42. This was not, as we see it, a case of substitution. In Martin the Employment Tribunal were held to have erred by substituting their own favourable assessment of the Claimant, based on their observations of seeing and hearing her at the Tribunal, for that of the interviewers who rejected the Claimant's application for employment; see per Mummery LJ at paragraphs 51-53. The Employment Tribunal in the present case, at the review hearing, did not seek to carry out a re-scoring exercise or to assess the suitability of the criteria; they were carrying out an entirely different exercise. They were not entering upon a reconsideration of the way in which the exercise had been carried out on the facts presented to those who did the scoring; they were seeking to make factual findings as to what would have happened in the course of that exercise if the Claimant had been scored on a factual basis different from that that existed when the exercise was carried out, i.e. if she had been restored to her literacy leadership role. In order to make findings as to that, they had to seek to reach a conclusion as to the points which the Claimant would have scored on that different factual basis; and they arrived at that conclusion on the evidence before them in a manner that was not said by Mr Legard to have been perverse when we asked him to identify his points of law under this ground and, in any event, has not been shown to have been perverse. The Tribunal did not make the error of substitution; they did not suggest that, on the basis on which the scorers were to carry out their exercise, any error had been made.
43. Finally under this ground, the reasons which the Tribunal gave at paragraphs 32-34 were, in our judgement, sufficient and Meek compliant. The Tribunal set out the rival factual contentions; they explained how they had used the relevant scoring sheet to reach the conclusion that the Claimant would, if she had been literacy leader, have scored at least as many points under criterion 1 as those scored by the lower of the two teachers with leadership roles. They identified what their conclusion was and how they reached it. They went on to describe how they had approached the other criteria and how they came to the result set out in paragraph 44. What the Tribunal set out was, in our view, ample to demonstrate to either side why they had respectively won and lost on this issue.

Ground 2

44. This ground of appeal relates to the Tribunal's refusal of Mr Legard's application to ask supplemental questions in evidence-in-chief of Mrs Arnett, whose role we have earlier described. The questions related to assertions made by the Claimant in her witness statement about the scoring of the selection exercise. Because at the preliminary hearing of this appeal, it was thought by Wilkie J that this ground raised or potentially raised an issue of "misconduct" on the part of the Tribunal, the Respondents were ordered to lodge an affidavit giving details of such misconduct; and the Employment Judge and lay member were asked to provide comments thereon for the full hearing. The Respondents put in an affidavit from Mr Legard himself; the Employment Judge provided detailed comments; the lay member provided briefer comments.
45. We confess to some anxiety, if the history of what happened before the Tribunal were to be in dispute, at the prospect that Mr Legard might be cast in the role both of witness and of advocate as to any such dispute; but Mr Legard accepted the accuracy of the Employment Judge's account. Our concerns were, as a result, allayed.
46. The sequence of relevant events is that, although the Tribunal had directed that there should be a mutual exchange of witness statements by 12 February 2010, the Claimant's solicitor obtained an extension and then served the Claimant's witness statement unilaterally on 22 February, at which time the Respondents were not ready and themselves sought an extension. They did not serve their three witness statements, including that of Mrs Arnett (who was the only witness who, in the event, was called by the Respondents), until 1 April, five weeks after they had received the Claimant's witness statement. On 12 May the Respondents' solicitors asked the Tribunal to act upon the inclusion within the Claimant's witness statement of material to which they objected. As a result, on 29 June the Employment Judge made these orders:

"3.1 The scope of the review Hearing has already been decided and the parties are reminded that any evidence must be limited to the issues identified in the Reserved Judgment dated 23 December 2009.

3.2 In so far as the claimant's witness statement deals with matters outside the scope of the review Hearing, the following paragraphs as highlighted by the respondents' counsel appear not to be relevant to the issues identified and should be omitted: paragraphs 9, 58, 59, 69, 72, 73, 76, 83, 87, 90, 92, 93, 95, 96 and 97."

47. At paragraph 8 of her comments the Employment Judge said:

"8. In relation to supplemental questions, the parties did confirm that the claimant's witness statement had been served on 22 February 2010. Mr Legard wanted to ask supplemental questions to "Invite a witness to make comments on a witness statement" but confirmed that the opportunity had already been given to comment as statements had been served on 22 February 2010 to the date of the Hearing, the statements had been scrutinised in the application to redact parts and no applications had been made for further witness statements to be filed. The only issue raised by the respondent was the relevance of matters which it alleged went beyond the purpose of the review hearing. The tribunal were satisfied that the opportunity had been there and the respondent was not taken by surprise by the contents of the statement, the respondent was not given leave to ask supplemental questions arising out of the claimant's witness statement. During re-examination, Mr Legard questioned the claimant regarding the scoring the claimant had given herself;-page 63 of my notes. He starts a question by stating "A number of issues raised in claimant's witness statement which I have not had the opportunity to address." Again, the respondent's counsel was asked to confirm background and my notes record: June 2009 saw sequential exchange; mutual exchange 24 November 2009; C's statement served on 22 February on the respondents; respondents questioned whether parts should be redacted; redacted statements served on 14 June 2009; on 1 April 2009 R's statement exchanged; no to application by respondents to submit supplemental statements in light of that; only point I want to make is haven't had opportunity to take my witness to parts of the claimant's witness, that's all; straightforward matter." This note ends at 4:10 when Mr Legard chose to finish his re-examination, and then the Tribunal asked questions of Mrs Arnett from 4:10 until 4:45pm. My clear recollection, however, was that Mrs Arnett made it clear that her HR role was to check the counting of the scoring rather than the actual scoring or rescoring which was down to the head teacher and she could not give direct evidence about specific scores given to the claimant or others and how those scores had been arrived at or how they/claimant would be re-scored. She advised as recorded in the reasons that the safest option was for the claimant to be scored as if she had TLR and Literacy but this was not done."

48. Mr Legard began his submissions on this ground by candidly accepting that the Tribunal's decision on this point was a case management decision to which the classic statement of principle set out in paragraph 32 of the Judgment of Henry LJ (with whom Thorpe and Beldam LJJ agreed) in Noorani v Merseyside TEC Ltd [1999] IRLR 184 applied. Henry LJ said, of case management decisions:

"These decisions are entrusted to the discretion of the court at first instance. Appellate courts must recognise that in such decisions different courts may disagree without either being wrong, far less having made a mistake in law. Such decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds, when the court at first instance exercised the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was 'outside the generous ambit within which a reasonable disagreement is possible'."

49. In the circumstances of this case, Mr Legard submitted, that test was passed. It is standard practice, he suggested, to allow a witness to answer supplementary questions-in-chief if they arise from the contents of the other party's witness statement. Mrs Arnett should not, in fairness of justice, have been denied the opportunity to comment upon the Claimant's assertions about the scoring exercise; it was neither proportionate nor consistent with the overriding objective that that opportunity should not have been permitted.
50. Mr Falkenstein submitted that the Respondents' arguments did not meet the requisite test. The Respondents had had the Claimant's witness statement for over a month before they served Mrs Arnett's witness statement and had had plenty of opportunity to ensure that the latter addressed any points in the former with which Mrs Arnett took issue. The contents of the Claimant's witness statement had been considered with care, hence the application to exclude part of it; but although the issue of scoring was plainly relevant to the issues to be decided at the review hearing, no application to put in an amended or further witness statement was made. The application to put further questions to Mrs Arnett was not made until after the Claimant had given evidence, as the Employment Judge pointed out. In these circumstances, the Tribunal's rejection of that application was a permissible reaction to it.
51. We have no hesitation in preferring Mr Falkenstein's submissions on this ground. The Respondents had plenty of time and opportunity to put forward anything that they believed Mrs Arnett, or any other witness, could relevantly say in a witness statement or witness statements, or, if they had failed to do so, to remedy such oversight before the hearing and before the third day of that hearing, after the Claimant had completed her evidence. In these circumstances, we do not accept that there is or could be any standard practice to allow a party to ask supplemental questions-in-chief of a witness which do not merely explain or fill in gaps in the contents of that witness's witness statement.
52. Furthermore, it seems from paragraph 8 of the Employment Judge's comments that Mrs Arnett, who was a witness of fact only, could not give direct evidence about the scores. The Tribunal's decision was, in the circumstances described by the Employment Judge, not perverse in any of the familiar respects identified in the statement of principle set out above. It fell within "the generous ambit within which a reasonable disagreement was possible" or was a permissible case management response to Mr Legard's application.

Ground 3

53. Mr Legard submits that the Tribunal erred in law by trespassing, in conducting its own redundancy exercise, on facts and matters relevant to the second claim, despite their stated assertion to the contrary. He accepts that this ground of appeal overlaps ground 1, and he repeated the point that the issue as to the loss suffered by the Claimant as a result of her dismissal should not be considered in the course of proceedings based on detriment short of dismissal but in the course of the Claimant's second claim based upon the dismissal, in which, he said, a different Employment Tribunal would be able to decide whether the redundancy was genuine or part of a campaign against the Claimant. It was, he submitted, unjust that the Respondents, who intended firmly to resist the second claim, should have to do so when the first Tribunal had already made the findings against the Respondents which are the subject matter of this appeal; but the Claimant would suffer no prejudice if all issues arising post-dismissal were dealt with as part of the second proceedings.
54. We understand, to some extent, the Respondents' belief that they have been unfortunate; it is their case, as to the merit of which we make no comment, that there was a genuine redundancy exercise and an appropriate selection procedure, and that they had an answer to the second claim, yet they face an award of compensation in the first claim which may well result in the Claimant's achieving compensation in respect of loss in particular of TLR payments, post-dismissal. A swift response to that concern might be that, if the Respondents had honoured the recommendations that they themselves invited the Tribunal to make at the original remedies hearing in October 2008, they would not have found themselves in the situation of which they now complain, for the Claimant would have been restored to her leadership role, her NPQH application would have been supported; and she would have no basis for seeking an award of future loss of earnings arising from the detriments that recommendation 3 sought to meet.
55. However, these points do not go to the issue which we have to resolve, namely whether this ground of appeal discloses an error of law on the part of the Tribunal. Having heard Mr Legard's cogent exposition of the Respondents' concern, we asked him to identify the Tribunal's error of law. His response was that the Tribunal should have acceded to his application to them to dismiss the review, on the basis that any examination of the scoring exercise and of the consequences for the Claimant of her dismissal should have been left to the Tribunal that dealt with the second claim; it was an abuse, he submitted, for the Tribunal to undertake a re-scoring exercise and, having done so, to consider awarding compensation to the Claimant as she sought.
56. Mr Legard went as far as to submit that it would have been an abuse for the Tribunal to use a review for that purpose, even if the Claimant had never issued the second claim, and even though, on his submission, she could not have obtained compensation for the claimed enduring consequences of the detriments which recommendation 3 was intended to put right.
57. Mr Falkenstein reminded us that the Tribunal had considered the Respondents' argument that the review should not encompass evidence and argument relating to the Claimant's selection for redundancy as it would have been had she not suffered those detriments at the November 2009 hearing and had decided, in their December 2009 Judgment, that the scope of the review would include those matters in so far as they related to the loss sustained by the Claimant by reason of the loss of her leadership role and the difficulties put in her way in respect of her NPQH application. The Tribunal's decision on that issue had not been the subject of appeal and was fixed as between the parties. For that reason alone, the Tribunal could not have been in error of law in following their own unchallenged decision.
58. In any event, he submitted, the existence of the second claim did not in any sense render it an abuse for the Tribunal in the first claim to address compensation issues properly arising from that claim, such as the proper assessment of the Claimant's losses arising from the Respondents' victimisation of her as established at the original hearing, in respect of which, because of the recommendations, the Tribunal had not yet made any assessment.
59. In our judgement, the Tribunal were not guilty of abuse (the juridical basis of which was not explored) or any other error of law, as contended by the Respondents. As to the Respondents' application to dismiss the review hearing, we do not need to repeat in detail what we said above in relation to ground 1. We also do not need to go so far as to say that the Tribunal could not, as a matter of law, have considered Mr Legard's application because the issue was res judicata between the parties; but, if it was not, we can see that the Claimant might well have had very good grounds for complaint if the Tribunal had upheld that application in the light of the history; and in any event it must, in our judgement, have been a permissible option for the Tribunal to decide to include within the scope of the review hearing the issue identified at paragraph 1(iii) of the Tribunal's Judgment of December 2009 (see above). The reasons given by the Employment Judge, at paragraph 19 of the December 2009 Judgment, are in these terms:

"19. That then leads to the issue of the scope of the remedy hearing and whether it should consider any impact of those failures to follow the recommendations on the claimant's selection for redundancy. If the failure to pay the TLR2 payment and the failure to restore the claimant in the literacy leadership role did have an impact on the claimant's selection for redundancy that would affect the assessment of loss flowing from those acts of victimisation and would have to be considered by the Employment Tribunal at the review hearing. It was correctly observed by Employment Judge Malone at the CMD that 'the claimant's selection for redundancy and consequential loss on dismissal could still be as a consequence of the earlier acts of less favourable treatment' and yet the dismissal could be fair. Thus if her consequent dismissal is held to be reasonable and fair the claimant would be prevented from recovering her losses under her existing complaint even though they were in consequence of that less favourable treatment. If it is a consequence of the earlier acts of less favourable treatment it is open to be considered by the Employment Tribunal at the remedy review hearing."

60. These reasons were, in our judgement, wholly sound, as were the Tribunal's reasons for rejecting the Respondents' application for dismissal of the review, set out at paragraph 17 of the Tribunal's Judgment of February 2011.
61. At the hearing which has led to this appeal the Tribunal had to discharge a task that was not the same as any of those which would arise in the course of the second claim. They had to decide what loss was caused to the Claimant by the detrimental treatment of her that was the subject matter of the third recommendation. Because of the recommendations which had been made, at the invitation of the Respondents, they did not make any determination of future loss of TLP payments, which on the Tribunal's findings the Claimant would have received had her leadership role not been taken away from her. It was the Claimant's case that, in calculating the amount of compensation for loss to her of such payments, beyond the date of the remedies hearing, the Tribunal should take into account that, had she not been deprived of her leadership role, she would not have been made redundant because she would have obtained a higher score in the selection exercise. The Tribunal had to address that case. They were not carrying out a re-scoring exercise and were not deciding that the redundancy dismissal was or was not fair; they were deciding only, as they were entitled and, in view of the way the Claimant was putting her case, were bound to do, whether her selection for redundancy and the consequent loss of her job, and thus loss of future TLR payments, were caused by the less favourable treatment of her by the Respondents that they had (alas, about three years earlier) found proved.
62. There was no reason in law, in our judgement, why those issues should not have been determined by the Tribunal in the course of the present claim as part of their determination of the quantum of compensation payable by reason of that less favourable treatment. The evidence available to both parties on those issues would not have been different if they were resolved as part of the second claim. If the Tribunal left them to be determined in the course of the second claim, however, and declined to assess compensation attributable to that less favourable treatment in the present claim, the Claimant could be prejudiced; for if the Respondents succeeded in their resistance to the second claim and the Claimant failed to establish that the dismissal was unfair, no compensation at all would ever fall to be payable under that claim; the Claimant would have fallen between two stools.
63. For these reasons, we conclude that the Tribunal committed no error of law as claimed under ground 3.

Ground 5

64. As we said earlier, it is logical and convenient to take this ground next, for, while differently expressed, at its heart it is an argument very similar to those considered under ground 3, namely that the Tribunal should not have trespassed on matters relevant to the second claim, should not have determined the cause of the Claimant's redundancy by way of a review and should not have rejected the Respondents' application for dismissal of the review.
65. The variant from ground 3 in this ground is the criticism that the Tribunal embarked upon the exercise of which the Respondents complained by way of a review process. As to whether the Tribunal erred in law in rejecting the dismissal application or in trespassing on matters relevant to the second claim, there is no need for us to add to what we have already said in relation to grounds 1 and 3, beyond making it clear that, in our judgement, the Tribunal did not set out to determine, and did not determine, the cause of the Claimant's redundancy, as Mr Legard suggested. The Tribunal did no more than determine whether the Claimant would have been selected for redundancy, applying the Respondents' selection process, if she had not suffered the detrimental treatment which the Tribunal had found to have occurred.
66. So far as the proceedings by way of review are concerned, Mr Legard relied on Williams v Ferrosan [2004] IRLR 607, in which the EAT, presided over by Hooper J, reviewed earlier decisions on the breadth of the review process and held that, in the light of rule 13(1)(e) of the Employment Tribunals (Constitution) Regulations 2001, which provided that a Tribunal could review a decision if, "the interests of justice require such a review", a power now to be found in rule 34(3)(e) of Schedule I to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, it was no longer requisite that a review should be held only in exceptional circumstances. Mr Legard referred us to the reliance placed in that decision upon the earlier decision in Dhedhi v United Lincolnshire Hospitals NHS Trust [2003] UKEAT/1303 that the Tribunal had erred in permitting the review in the absence of a mistake or procedural mishap or shortcoming. In the present case, it was submitted, there had been no mistake or procedural mishap. The situation that the Tribunal had anticipated when considering what might occur if the Respondents failed to comply with the recommendations had been completely changed by the dismissal and the bringing of the second claim, and the Tribunal should not have embarked, under the guise of the review, on a full fact-finding exercise in relation to the redundancy dismissal, involving factual issues, in particular examination of the scoring, that would have to be considered in the second set of proceedings.
67. Mr Falkenstein submitted that, as indeed was held in Williams, the power to carry out a review, in the light of what is now rule 34(3)(e), embraced circumstances beyond those canvassed in earlier authorities such as Trimble v Supertravel [1982] ICR 440 and was no longer restricted to cases of mistake or procedural mishap. He referred us to Newcastle City Council v Marsden [2001] ICR 743, which was not before us but which counsel agreed we could consider before delivering this reserved Judgment, as confirming that it is no longer necessary for either exceptional circumstances or procedural mishap to be established. In that case Underhill J, in the EAT, said that the introduction of the overriding objective should not be used to enable the Tribunal to depart from established principles.
68. However, the circumstances of this case were, in our judgement, wholly exceptional and indeed, we hope, unique. The suggestion of review only came about because the Respondents themselves headed off an award in respect of future loss of the TLR earnings by inviting the Tribunal to make recommendations which they said they would follow and which would render any award in respect of the loss of future TLR payments unnecessary if complied with.
69. It is important, in our judgement, that it was in that context that the Tribunal indicated in their Judgment at the remedies hearing that, if the Respondents did not follow the recommendations (which the Respondents, we repeat, had themselves invited the Tribunal to make but which the Tribunal could not enforce directly), the Claimant could apply for a review; see paragraph 8.1 of the Judgment of 15 May 2009. The Tribunal could equally well have adjourned determination of future loss of earnings attributable to the detriments which recommendation 3 was intended to address pending compliance with the recommendation; for they did not make any determination and held back from doing so in the light of their anticipation that the Respondents would comply with the recommendations, as they had said that they would.
70. The Tribunal had not said why they chose the review route rather than the adjournment route to the giving to the Claimant of opportunity to return to the Tribunal to have such a determination made if the recommendation was complied with. The distinction was, we suspect, of little importance in the light of the Respondents' assurance that the recommendations would be complied with. It may have been regarded as more practical to leave it to the Claimant to take the initiative of seeking a review if she needed to do so rather than to adjourn to a fixed date. All courts and Tribunals are, in modern times, discouraged from granting an open adjournment. There is no suggestion that the Respondents complained about or challenged the Tribunal's proposal to address the future loss issue if necessary by way of a review; and, had the dismissal not occurred and the second claim not been presented, it would, in the highly unusual circumstances of this case, have been unarguable that the holding of such a review was not "in the interests of justice", a phrase of sufficient width easily to embrace the outstanding quantification of the future loss sustained by the Claimant by reason of the relevant detrimental treatment.
71. How else was that quantification to be achieved, it is relevant to ask? In the absence of such quantification at the remedies hearing or of an adjournment, such a quantification could only be achieved by a review in the interests of justice. It is not necessary, in our judgement, to dress up what happened as a mistake as to whether the recommendations would be followed, although that would, if necessary, be a potentially available analysis. Further, the Respondents did not comply with recommendation 3. The Claimant applied for a review; that application was granted in the Employment Judge's decision of 15 May 2009. As a result, there was going to be a review hearing at which the outstanding quantification would be made. The Respondents thereafter dismissed the Claimant on the grounds of redundancy without taking into account the improved position in which she would have been had recommendation 3 been complied with and have, ever since (but without appealing any of the Tribunal's decisions) sought to head off the outstanding quantification by arguing that it would trespass upon the issues to be decided in the second claim (albeit such issues would only arise if that claim succeeds).
72. In these circumstances, we see no error of law on the Tribunal's part in proceeding to make that outstanding qualification in the form of a review hearing. We have already addressed the Respondents' arguments that the second claim in effect overtook the outstanding issues from the first claim and that the Tribunal ought therefore to have dismissed the review application, and have rejected those arguments. If the Tribunal were not prevented by the issue of the second claim from embarking on the outstanding quantification issues in the case of the first claim, as in our judgement is the correct view, the only format in which that quantification could be achieved was by way of review; it was open to the Tribunal to entertain or continue to entertain that review in the interests of justice.

Ground 4

73. This ground relates to one specific item of detriment. The Tribunal found at paragraph 3 of their original Judgment on liability issues that the Claimant had been subjected to detriment by, inter alia, at (g) her removal from her leadership role and at (i) by Mrs Sarsfield's failure to support her NPQH application. Ground 4 asserts that the Tribunal was "wrong to base its finding on the assumption that the Claimant had not received support in her NPQH application". It is the Respondents' case that there was evidence before the Tribunal at the review hearing that Mrs Sarsfield had supported a subsequent NPQH application made by the Claimant in 2009 but that the Tribunal reached their conclusions at the review hearing on the erroneous basis that there was no such evidence and, further, did so when the scope of the review was limited to the financial consequence of the Respondents' failure to restore the Claimant to her literacy leadership role.
74. Mr Legard referred to paragraphs 44 and 53 of the review Judgment, both of which we have set out above, in which the Tribunal refer not only to the failure to restore to the Claimant her leadership role but also to her failure to support her NPQH application. In contrast, we refer to page 7 of the supplementary bundle before us, in which Mrs Sarsfield had said in an email to the Claimant dated 2 October 2008 that she would support the Claimant's NPQH application. He referred too to page 19 in that bundle, on which, as part of a two-page letter from Mrs Sarsfield to the Claimant, there appears, at the foot, this assertion: "With regard to supporting you with an NPQH application, this has already been carried out".
75. He referred too to page 21 in that bundle, which is part of a letter dated 6 May 2009 to the Claimant from Wendy Watson, the County Council's Head of Governance and Monitoring, in which, under the heading "Recommendation 3", these words appear:

"I understand that both the Headteacher and Sarah Brandon supported the application for NPQH and will continue to do so with any future applications. The acceptance on the programme is not within the discretion of the respondents."

76. On the basis of these documents Mr Legard submitted that the Tribunal had (1) erroneously taken into account the NPQH issue, and (2) determined that the Claimant would not have been made redundant if recommendation 3 had been complied with on the erroneous basis that there was no evidence that the Claimant's NPQH application had been supported.
77. However, Mr Falkenstein painted a different picture. He firstly reminded us, correctly in our view (see sub-paragraphs 1(ii) and (iii) of the PHR Judgment of December 2009) that the scope of the review was not limited to the direct effect of the loss of the Claimant's leadership role and the TLR payments that went with it, and that the Tribunal's decision as to that scope had not been challenged. He further tells us that, at the review hearing, the Claimant gave evidence that she had not been given the support necessary to progress her NPQH application and to get onto an NPQH course, and that she and her expert witness gave evidence of the expectation, if a teacher is to get onto such a course, that he or she must have a leadership position and that it was very unusual to get onto such a course without it. Thus, on that evidence, the Claimant had not received the support that she required.
78. In contrast to the position thus described, no one on the Respondents' side gave evidence that the Claimant had been given such support. Neither Mrs Sarsfield nor Ms Watson was called. The Respondents had served a witness statement from a Mr Pearcey, an officer of the County Council, who was going to deal with this issue; but he was not called by Mr Legard, who explained to the Tribunal that he had decided not to call him but to use his evidence, if necessary, in the course of the second proceedings, and did not want any question of issue estoppel to arise if Mr Pearcey gave evidence at the review hearing.
79. In these circumstances, the Tribunal were (a) entitled to consider the effect of any failure to support the Claimant in her NPQH application (which, if successful, would have increased her score in the redundancy selection exercise, although the Tribunal did not include such influence in their calculations), and (b) entitled to prefer the live evidence called on behalf of the Claimant to the documents put into the Tribunal bundle which made assertions that were in issue yet were not supported by any evidence at all. Mr Legard did not substantially dispute Mr Falkenstein's account by way of reply.
80. We have no doubt that the Tribunal were entitled to take into account both limbs of recommendation 3, including the recommendation that the Claimant should be supported in her NPQH application, and also to find, as they did in paragraph 44, that the Claimant would not have been selected for redundancy if she had been scored on the basis of compliance with recommendation 3. We note that on the Claimant's case, if both limbs of recommendation 3 had been complied with, she would have scored 45 points; that the Tribunal compared her with two teachers who had leadership roles but were not said to have gained extra points through NPQH, and relied on a direct comparison with them and decided that if the Claimant had been part of the leadership team (without any reference to the award of any further points through the NPQH process), she would have obtained 33 points on criterion 1. It appears that, without further points through the NPQH procedure, the Tribunal were justified in concluding that the Claimant would not have been selected for redundancy if she had had her leadership role restored. But, putting that argument to one side, although the Tribunal may have somewhat understated the Respondents' evidence by saying that they had seen no evidence of NPQH support, what they had seen (if their attention was drawn to it) was unsupported by any oral evidence, even though such evidence was apparently available; the Respondents made a deliberate choice not to call such evidence, and the Tribunal's conclusion that the necessary NPQH support had not been provided was one that, on the basis of the evidence before them overall, it was open to them to reach.

Ground 6

81. Under the heading "Loss of trust and confidence", the Tribunal, at paragraph 54 of their review Judgment, said this:

"54. We noted that in the respondent's counter schedule at paragraph 4.3 it was contended that:

'Yet further, it is equally clear that claimant having lost the trust and confidence of other colleagues, would have been dismissed in any event and the rule in Polkey applies.'

We heard no evidence to support this contention. There was no evidence of loss of trust and confidence between the employer and the employee that would have led to the claimant's dismissal. The letter of dismissal expresses some reluctance at letting the claimant go. The claimant was never disciplined by the respondent and there was no evidential basis for speculating that the claimant would have been dismissed for loss of trust and confidence and we were not willing to speculate that the claimant's employment would have ended at some undefined point in the future as a result of loss of trust and confidence when there was no evidence of the matter ever being raised with the claimant in the way it was advanced at the hearing. Any arguments advanced by Mr Ledgard in submissions and during the course of the hearing were not supported by the evidence that the Tribunal heard."

82. The Respondents contend that the Tribunal's conclusions of fact, as set out in that paragraph, were erroneous or perverse.
83. Mr Legard began his argument under this ground by submitting, in reliance on the decisions of the EAT in Abbey National PLC v Formoso [1999] IRLR 222, Abbey National PLC v Chagger [2009] IRLR 86 (albeit this point was further considered in that case by the Court of Appeal) and Software 2000 Ltd v Andrews [2007] IRLR 568 that, where a Tribunal in the course of an assessment of compensation for the subjection of a Claimant to detriment is considering an award for loss of earnings in the period after a dismissal, which, it is claimed, would not have occurred had the Claimant not been subjected to that detriment, it is bound, at least if the point was taken by the Respondents, to consider whether the Claimant would have been dismissed in any event for other reasons. For the purpose of this appeal, we accept that submission, which Mr Falkenstein did not seek to challenge; the Tribunal did not find against the Respondents on the issue addressed in paragraph 54 in reliance on any argument of law that the issue did not or could not arise.
84. What, then, was the material on which the Respondents relied in support of their contention that the Claimant would have been, or that there was some likelihood that she would have been, fairly dismissed anyway on the basis of a breakdown of trust and confidence? It emerged from argument that this is a second area in which the Respondents had served evidence in a witness statement which purported to address and support the Respondents' assertion but then chose not to call it. The evidence, we are told, was contained in Mr Pearcey's witness statement, but Mr Legard did not dispute Mr Falkenstein's account that, at the hearing before the Tribunal, Mr Legard was asked by the Tribunal whether he was going to call any evidence on this issue and said that he was not. Nor did the Respondents call Mrs Sarsfield, any of the school governors or anyone from the County Council to give evidence that the Respondents had considered or would have considered dismissing the Claimant on the basis that there had been a breakdown of trust and confidence between her and the Respondents had she not been dismissed on the ground of redundancy. Mr Legard told us that the Respondents chose not to do so in order not to impinge upon the second claim. The Tribunal were therefore wholly correct to say that they had heard no evidence to support the Respondents' case on this issue.
85. Mr Legard told us that, in his skeleton argument (it is not clear to us now whether this was an opening or closing skeleton argument; it does not matter) and in his final submissions, he relied on a number of documents in the bundles before the Tribunal. They were, or included in particular, (a) a letter from the National Association of Headteachers dated February 2009 putting forward a grievance on behalf of the Deputy Head that the Claimant was guilty of bullying and harassing her by making persistent complaints either directly against her or that impacted on her role, and (b) a similar letter from Unison on behalf of a teaching assistant about the Claimant's lesson planning.
86. As a result of the grievances which had been raised, Mr Legard told us, the Respondents commenced an investigation, which was carried out by Broadwood Consultants Ltd, in the course of which a number of employees set out their discontent and expressed the view that the Claimant should no longer be employed at the school. The report of this investigation, which was 66 pages long, was produced in July 2009. Its conclusions and the basis for them were not investigated before the Tribunal, but it can be seen that it appears to have decided that in some respects the Claimant had made spurious complaints during the period when she was found to have made complaints that, according to the Tribunal's findings, amounted to protected disclosures, i.e. were made in good faith, and had been victimised as a result. Some of the complaints against the Claimant were found to be unsubstantiated. The report was produced without any input from the Claimant and, it appears, without consideration of the Employment Tribunal's Judgments on the Claimant's claim up to that point.
87. There was no document in the bundle, before or after that report, that had in any way suggested that the Claimant was going to be dismissed or that any consideration had been given to dismissing her (other than for redundancy).
88. The material we have described was in the Tribunal's bundle; but no evidence was called to support any of it or to suggest that the Respondents had considered dismissing the Claimant on the basis that trust and confidence between her and the Respondents had broken down (presumably putting forward "some other substantial reason" as a potentially fair reason for such a dismissal), to support any case that such a dismissal would have been fair, or that there was a real chance that such a dismissal would have taken place and would have been fair. The Tribunal were, in our judgement, entitled to expect oral evidence from the Respondents as to that but did not receive it. They had nothing before them on this issue except a set of documents unsupported by any evidence and were aware that the Respondents had put forward which was expected to be oral evidence on the issue in the form of witness statements but had chosen not to present it as a matter of tactics.
89. In our judgement, in these circumstances the Tribunal were wholly justified in what they said in paragraph 54. In the last sentence of that paragraph they recognised that Mr Legard had raised in his closing submissions argument based on the material which he identified to them, and which we have summarised above; but they were entitled to conclude against the Respondents on the basis that the documents were wholly supported by the oral evidence that the Tribunal had heard. In our view, the Tribunal's decision on this issue was one which they were entitled to reach; it has not been shown to have been perverse, still less overwhelmingly so (see Yeboah v Crofton [2002] IRLR 634 at paragraph 33), or to have been reached on the basis of any other error of law.

Ground 7

90. The Tribunal ordered that the Respondents should pay the costs of the proceedings after their remedies Judgment, and in particular after the first review decision, on the grounds that the Respondents had, over that period, conducted the proceedings unreasonably. That is, of course, a ground which falls within rule 40(3) of Schedule I to the 2004 Regulations. The Tribunal referred to rule 42 of Schedule I to the 2004 Regulations in paragraph 58 of their Judgment; but that is plainly a dictation or typographical error, and Mr Legard took no point upon it.
91. The Tribunal did not make any assessment of the amount of costs; they did not have the material upon which to do so and therefore postponed any assessment or reference to a County Court if the sum claimed exceeded £10,000 to the next hearing (which was necessary for reasons which we have earlier explained).
92. The Respondents' failures to comply with the recommendations – and there is, as we understand it, no dispute that the focus was on recommendation 3 – were central to the Tribunal's decision as to costs. Mr Legard submitted that, although he accepted that the Tribunal had been invited by the Respondents to make recommendations, the Respondents did not invite the Tribunal to make any specific recommendation; and he repeated to us the assertion made in his skeleton argument that the Respondents could not have known what recommendations the Tribunal would make. That was important because it was the Respondents' contention, supported by documents in the supplementary bundle – but again not by any oral evidence – that the restoration to the Claimant of her leadership role and TLR payments was and remained an impossibility without re-formulating the school staffing structure; but the Respondents, he submitted, had never been allowed, since the recommendations were made, to present evidence to that effect, and the Tribunal had never considered whether it would have been reasonable for the Respondents to reconfigure the school staffing structure. Mr Legard said, in terms, "We [i.e. the Respondents] cannot give the Claimant TLR payments". It was therefore unjust and perverse for the Tribunal to award costs against the Respondents for failure to follow a recommendation that they could not follow. It is essential, he submitted, that there should be a finding of unreasonable conduct of the proceedings based on a proper examination of the facts if costs are to be awarded on that basis; but the finding that the Tribunal made at paragraph 57 was not based on a full examination of the facts and not sustainable.
93. Mr Legard referred us to two of the leading recent authorities on costs, Macpherson v BNP Paribas [2004] IRLR 558 and Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78 in support of his proposition that the Tribunal had to make a sustainable (our word) finding of unreasonable conduct of the proceedings. We do not need to cite those authorities; we accept Mr Legard's proposition. However, it does not follow that it was not open to the Tribunal to reach a conclusion that the proceedings had been conducted unreasonably on the basis set out in their Judgment.
94. In our view, the argument that the Respondents did not know that the Tribunal would make a recommendation such as recommendation 3 is, to say the least, unpersuasive. The Tribunal had decided in their original Judgment that the Claimant had been subjected to detriment by the removal from her of her leadership position and by the Respondents' failure to support her through the NPQH process. Whether the Claimant's role as literacy leader carried with it the TLR payments she claimed was one of the issues to be decided at the remedies hearing; and the Tribunal addressed that issue in detail in their remedies Judgment. Mr Falkenstein informed us that the Respondents adduced evidence at that hearing that TLR did not go with the position of which the Claimant had been deprived and that it could not be paid to her, in that position, under the school's staffing arrangements; Mr Legard, in reply, did not challenge what Mr Falkenstein told us, but we do not base our Judgment on that. Whatever evidence was adduced, the Tribunal found, at paragraph 4.8 onwards and paragraph 8.1 of their remedies Judgment, that the Claimant would have had TLR payments had her leadership role not been removed and was entitled to compensation for the absence of such payments. The Claimant's schedule claimed future loss of TLR payments for a period of eight years (see paragraph 5.1).
95. Sub-paragraphs 8.2 and 8.6 of the remedies Judgment make it clear that the Respondents suggested the making of recommendations in order to obviate or reduce the effects of their victimisation of the Claimant. The suggestion must have been addressed to future loss; it could not have been addressed to past loss. That loss, as claimed, included future TLR payments. The Respondents must have anticipated that the Tribunal, asked to make recommendations to obviate or reduce the effects of their victimisation, would or might make recommendations that would include the restoration of the Claimant's leadership role, the making of TLR payments as a result, and support for the Claimant in the NPQH process. If the Respondents did present evidence about the impossibility of such restoration or of making TLR payments to the Claimant, that evidence was plainly rejected. If they did not do so, they had the opportunity to do so. If it was their case that restoration of the Claimant's leadership role and future TLR payments could not be achieved, they should have made clear the limitations on recommendations for the future which resulted from their invitation to the Tribunal to make them; they did not do so, nor did they present any appeal against any of the Tribunal's decisions at the remedies hearing, including the recommendations.
96. The Respondents did make an application for a review of "the TLR (2) award/recommendation"; that application was refused by the Tribunal in their Judgment of 15 May 2009. Mr Legard suggests that the reason for that refusal is to be found in paragraph 18 of the Tribunal's Judgment of 23 December 2009, in these words:

"Any arguments the Respondents sought to rely on for the non-payment of the TLR (2) payment should and could have been made at the remedy hearing. The argument advanced at the time was considered and adjudicated upon, and this is an attempt to reargue the issue."

97. Those words come from the Tribunal's reasons for rejecting, in their Judgment of 23 December 2009, the Respondents' contention that they should be able to argue justification for not complying with the recommendations.
98. The Respondents did not appeal against the refusal of their application for a review; indeed, they did not even seek Reasons from the Tribunal for that decision. Nor did they appeal against the Tribunal's conclusion that they should not be entitled to argue justification in the course of the decision to which we have just referred.
99. Furthermore, Mr Legard admitted that this was a third area covered by Mr Pearcey's witness statement, but that the Respondents did not seek to call him on the issue of costs (no doubt because they had earlier attempted to put forward the justification on which they now seek to rely and had failed).
100. In the light of this history, we do not accept that the Respondents had been deprived of the opportunity to put forward that justification. The Tribunal, similarly constituted throughout these elaborate proceedings (save for the absence at the review hearing of one of the lay members) were fully aware of the history and must be taken to have had it in mind in reaching the conclusion that they did as to costs. They reached a conclusion which was, in our judgement, one of fact, based on the history, and were guilty of no error of law in reaching that conclusion.
101. Mr Legard made two further points. The first was that it was not clear which recommendation or recommendations the Tribunal were basing themselves on in paragraph 57 of their review Judgment. It is correct that the Tribunal in that paragraph do not specifically identify recommendation 3; but in our judgement it is clear that the parties and the Tribunal were focussed on recommendation 3. Read as a whole, there is no ambiguity in the Tribunal's decision.
102. Secondly, Mr Legard pointed out that the award had been made indiscriminately between the Respondents and that the Tribunal should have stated which Respondent had been guilty of unreasonable conduct. We do not agree. The Respondents have been treated as one throughout the whole of the proceedings. There had never been any suggestion that any of the Tribunal's conclusions should be made on a differential basis as between the two Respondents. They were jointly represented throughout. There is no suggestion that the Tribunal were, in the course of the review hearing, invited to treat the Respondents, as to costs or otherwise, separately in any respect.
103. For these reasons, ground 7 of the Respondents' appeal fails.

Conclusion

104. For the reasons we have set out above, at, we regret, great length, this appeal fails and is dismissed.

The Future

105. There remain two outstanding matters for decision by the Tribunal. The first is the outstanding assessment of future loss and/or costs in the present proceedings. The second is, of course, the second claim.
106. The outstanding assessment in these proceedings needs to be completed by the Tribunal constituted as it was at the review decision (the second lay member no longer being available). If the Respondents do not agree to proceeding with only one lay member for the future, then another will have to be brought in; but we hope that that does not happen.
107. Because, in our view, that step can be undertaken and the present claim brought to an end (relatively speaking) there would appear to us (but it is not for us to decide) to be little point in considering consolidation at this stage. We hope that, when the present proceedings have concluded, it may be thought to be unnecessary to pursue the second claim at all. If it is to be pursued, it will be for the Employment Tribunal to decide whether it should be heard by the same Employment Judge and lay member who have been involved in the disputes between the Claimant and the Respondents throughout. The Respondents appear, from what Mr Legard has said, to have concluded that the second claim will be heard by a different Tribunal. We see no reason why that should be so; but that is a matter for the appropriate Regional Employment Judge, and we say no more about it. We would simply encourage all involved to work towards a final conclusion of all disputes between the Claimant and the Respondents with as much speed as possible.