HM PRISON SERVICE v MRS D M SALMON [2001] UKEAT 21_00_2404

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 21_00_2404Case No Appeal No. EAT/21/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HM PRISON SERVICEAPPELLANTMRS D M SALMONRESPONDENT
Before
Mr Recorder UnderhillDate 24 April 2001
[1]APPEARANCES For the Appellant MISS R DOWNING (of Counsel) Instructed By: The Treasury Solicitor Queen Annes Chambers 28 Broadway London SW1H 9JS For the Respondent MR N FAIRWEATHER (Solicitor) Instructed By: Harman & Harman 10 Station Road West Canterbury Kent CT2 8AN MR RECORDER UNDERHILL QC : This is an appeal by Her Majesty's Prison Service, the Second Respondent in the Employment Tribunal, against the assessment of compensation for sex discrimination in a complaint brought by an ex-prison officer, Mrs Dawn Salmon. Mrs Salmon joined the Prison Service in March 1990. In September 1991 she transferred to Canterbury Prison, which is an all-male prison. From October 1993 she worked on C wing, which initially held sex offenders but later became a resettlement unit - that is, it housed prisoners approaching the end of their term. For a variety of reasons Mrs Salmon's time at Canterbury became increasingly unhappy; and on 7 October 1996, following an incident on 4 October - "the dock book incident", to which we will refer in more detail below - she went off sick with what was later diagnosed as a moderate to severe depressive illness. She took medical retirement out of the Service in December 1997.[2]In February 1997 Mrs Salmon brought proceedings against four Respondents -(1) one of her ex-colleagues, Officer David;(2) the Governor of Canterbury Prison;(3) the Prison Service; and(4) the Home Office. Sub-paragraph (3) of paragraph 14 of her Originating Application alleged in general terms that:
"Throughout her employment at Canterbury, but most particularly since her transfer to C wing, the Applicant has had to withstand a persistent barrage of discrimination, on the grounds of her sex, in various forms, from officers at all levels."
Sub-paragraph (4) set out detailed particulars under heads (a) to (u). Sub-paragraphs (5) to (23) set out the facts of the dock book incident and its aftermath.[3]Many of the incidents particularised under sub-paragraph (4) were dismissed at an interlocutory hearing on 1 May 1997 on the basis that they were out of time. Only items (j), (k), (l), (m), (r), (t) and (u) were allowed to proceed, together with the general allegation at sub-paragraph (3), of which they constituted particulars, and the sub-paragraphs relating to the dock book incident.[4]The case was heard at the Employment Tribunal in Ashford over seven days in December 1997 and February 1998. In a thorough and careful decision sent to the parties on 17 March 1998 the Tribunal upheld the remaining parts of Mrs Salmon's complaint against Officer David and the Prison Service in a number of respects, but not in all. The claims against the Governor and against the Home Office were dismissed. It is necessary to set out fairly fully the discrimination which the Tribunal held to have been established.[5]First , it considered sub-paragraph (4)(l) of paragraph 14 of the Originating Application, which was in the following terms:
"There was an anti female culture amongst the prison officers generally, most especially the older officers. They would make unsolicited comments by way of expressing their negative views on women in the prison service. They would also make a point of making jokes about women, in the Applicant's presence, in an attempt to provoke a reaction. One male officer (Henderson), now retired, routinely referred to all female staff as "slit arses"
. So Phillips would make anti women jokes in C wing office, often in front of inmates, which the Applicant asked him to stop. Officers would often make comments about the Applicant's breasts and make a point of staring at them whilst speaking to the Applicant." In paragraph 40 of its Reasons the Tribunal held:
"Dealing with the complaint at sub-paragraph (1), our findings at paragraph 26 and the admission at the hearing by Officer Phillips that he had made anti-female jokes in the presence of the Applicant, have led us to the conclusion that the sexual banter at Canterbury Prison did go beyond what was acceptable to right-thinking people, and can reasonably have been seen as offensive by the Applicant. Into this category, we place the reference to women as "split arses" and the conduct of Officer McNeil towards the Applicant which is complained of at paragraph 14(4)(t). We make no finding that the Applicant's breasts were stared at and we do not consider that reservations expressed by male officers about the advisability of employing female officers in a male prison, could amount to gender-based words in the category outlawed by the European Code of Practice. Such opinions were not offensive and did not create an hostile, intimidating or humiliating working environment for the Applicant as a woman."
The reference to paragraph 26 is to an earlier finding that:
"We consider that the Third Respondent's failure to take positive steps to give the equal opportunities policy a high profile and to train officers and senior officers in matters relating to sex discrimination, resulted in a situation where male officers, who were in the majority, felt able to behave among themselves as though no women were present, even when they were so present. This meant that remarks, language and behaviour with sexual overtones were commonplace. Prison "culture" allowed the use of words and behaviour which were not so much anti-female as crude, vulgar and often based upon sexual matters. We have no difficulty in finding that one officer referred to women as "split arses" and that the human anatomy, both male and female, was often referred to by male officers in basic colloquial terms. We have seen examples of graffiti scrawled on lockers containing crude references to both male and female parts and referring to the act of sexual intercourse and to sexual orientation (document 294) and it appears that this habit was allowed to go unchecked and that both male and female officers were referred to. Similarly, a habit prevailed of officers "doodling" in the Crown Court dock books. This too was apparently known about and allowed by the Third Respondent's management."
As to the reference to the conduct of Officer McNeil, see paragraph 8 below. It will be seen that the Tribunal's finding did not constitute a full acceptance of the complaints under this paragraph.[6]Secondly , in paragraph 22 of the Reasons the Tribunal found:
"It was ... during 1996 that Mrs Salmon became aware that the senior officers' desk at Canterbury Crown Court contained a drawer full of pornographic magazines. Other officers would take great delight in sitting in this office looking through such magazines in front of Mrs Salmon, and in her evidence that on one occasion she objected and even tore up some of the magazines was not challenged."
This finding broadly corresponded to Mrs Salmon's complaint at sub-paragraph (4)(m) of paragraph 14 of the Originating Application. At paragraph 41 of its Reasons the Tribunal held:
"The matter complained of at paragraph 14(4)(m) is the subject of a finding by us at paragraph 22. This did constitute a practice which we find amounted to sexual harassment of the Applicant, since it was offensive and did create a humiliating environment. The explicit approval of and delight in women as creatures for the provision of sexual gratification for men by prison officers was bound to have the effect of creating a humiliating working environment for women officers, especially one such as the Applicant who had chosen the Prison Service with a view to advancing her career therein."
[7]Thirdly , in paragraph 18 of its Reasons the Tribunal found:
"Mrs Salmon was often involved in escort duties, transporting inmates from place to place outside the prison, e.g. to Court. All officers during initial training learn control and restraint techniques. On escort duties one officer is handcuffed to the inmate, while the other officer is "in charge"
. Whilst prison rules do not require the senior officer, i.e. the officer with the longest service to be in charge, we accepted that that was usually the practice carried out at Canterbury. We have examined the documentary evidence dealing with officers roles on escort duties between March 1995 and October 1996. On one occasion in July 1995, the Applicant and Officer Andrews were escorting an inmate to Southwark Crown Court. Mrs Salmon was the senior of the two officers and she appeared on the relevant form as being "in charge escort". Officer Andrews, however, told her that she was not to be in charge and he refused to be handcuffed to the inmate. Mrs Salmon complained to her senior officer following this incident, but he told her that he did not use the seniority list to select people for escorts. Having examined the evidence, it appears that this was the only occasion when Mrs Salmon was not allowed to be in charge, despite her seniority, and we have no difficulty on the evidence before us in finding that this occurred because she was a female officer. We have noted, however, that there were occasions when officers who were senior to Mrs Salmon were themselves handcuffed to the inmate." In paragraph 43 it found:
"Dealing with the complaint at paragraph 14(4)(r), we have found at paragraph 18 above that there was one occasion when a failure to retain the Applicant as officer in charge on an escort duty amounted to less favourable treatment of her on the grounds of her sex. We have decided that she was thereby subjected to a disadvantage or a detriment in relation to her position, since she was removed from the in charge position and handcuffed to an inmate, against her will. This can only have had an humiliating effect upon her and such treatment was aimed at her, we find, because she was a woman."
Paragraph 14(4)(r) had complained of such discrimination as occurring on a regular basis rather than on the single occasion found by the Tribunal.[8]Fourthly , in paragraph 20 of its Reasons the Tribunal found:
"We heard evidence about a C Wing officer, Officer McNeil. There is no doubt that Officer McNeil was a difficult, moody and often rude officer, and that he was in the habit (being a Scot) of calling male officers "man" and female officers "hen"
. We accepted Mrs Salmon's evidence, however that he had a habit of speaking to her in an extremely derogatory manner, shouting commands at her and calling her "woman" in the process. This occurred in front of inmates. He also followed Mrs Salmon around checking everything that she had done. Officer McNeil was obviously a very outspoken person and generally difficult to deal with, but we find that his behaviour did have a disproportionate impact upon female officers, particularly upon the Applicant, and his remarks and comments were gender based and had the effect of belittling her in front of inmates." As noted above, the Tribunal held in paragraph 40 of its Reasons that Officer McNeil's conduct amounted to sex discrimination.[9]Fifthly , the Tribunal dealt with the dock book incident. This can be summarised as follows. At the Crown Court "dock books" were maintained in which prison officers were obliged to record details of the sentences passed on prisoners for whom they were responsible. It was common practice for officers to make entries in the dock books which had nothing to do with their official purpose. On 4 October 1996 Mrs Salmon found in the dock book at Canterbury Crown Court two entries in the following terms:
"I COULDN'T HEAR THE STEREO YESTERDAY BECAUSE FAT PIG SALMON WAS SITTING ON MY FACE WHILE HER WANKER HUSBAND PETE WAS SUCKING MY COCK, DIRTY BASTARD DIDN'T BRUSH HIS TEETH HELLO NEIL MY NAME IS DAWN. I AM A PLEASANTLY PLUMP TWENTY EIGHT YEAR OLD BLONDE VERY ATTRACTIVE AND VERY LONELY DESPITE BEING MARRIED. I AM A PROFESSIONAL LADY ALTHOUGH I AM SERIOUSLY LOOKING AT ENJOYING A MORE DOMESTIC SITUATION, AS THIS WOULD LEAVE ME TO FULLFILL (sic) MYSELF WITH MORE SATISFYING PASTIMES IN THE EARLY AFTERNOON. I AM OF BRITISH BLOOD THROUGH AND THROUGH ALTHOUGH I WAS BROUGHT UP IN AN EASTERN COUNTRY. I CONSIDER MYSELF DECENT, WELL SPOKEN AND MORRALY (sic) CORRECT AND THINK IT VERY IMPORTANT FOR ONE WITH POSSIBALLY (sic) SOCIALLY UNACCEPTABLE SEXUAL HABITS TO KEEP SUCH HABITS WITHIN THE CONFINES OF THEIR DOMESTIC WALLS. I HAVE SUCH HABITS BUT WOULD PREFER TO DISCUSS THESE WITH YOU ON A ONE TO ONE BASIS AS THEY ARE TRULY 'SENSITIVE POINTS'. MY EVERYDAY PASTIMES ARE SEXUAL DOMINATION, CEMMENT (sic) MIXING AND ERCOL FURNITURE COLLECTING."
She believed that these entries were written by Officer David, the First Respondent in the Tribunal; he initially denied this but eventually admitted it after the Service had obtained evidence from a handwriting expert. Mrs Salmon was deeply upset and shocked. She did not return to work the following day. She saw her doctor on 7 October 1996 and - as noted above - remained off sick with depression until her eventual retirement 14 months later. The Tribunal held that Officer David's conduct in making these entries amounted to sex discrimination and that the Prison Service was liable under Section 41(2) of the Sex Discrimination Act 1975: the Service had made it plain from the start of proceedings that it did not intend to raise any defence under Section 41(3).[10]In summary therefore, the Tribunal found that the Prison Service had been guilty of sex discrimination against Mrs Salmon in a number of particular respects, culminating in the dock book incident. It did not, however, uphold her complaint in full. Some aspects were, as noted above, held to be out of time. Others were rejected on the merits. We need not set out all of the rejected complaints here, but it is important for the issues which follow to appreciate that they were quite substantial. Mrs Salmon, as one of only very few women officers in an all-male prison, was subjected to a fair amount of sexual harassment from the prisoners: there was, for example, a period during which she was regularly shouted at by prisoners as 'Miss Whiplash'. She alleged that the Service acted discriminatorily in not taking sufficient steps to prevent this conduct by prisoners, which she found distressing. The Tribunal rejected this aspect of her complaints.[11]There was no appeal by the Prison Service against the findings of the Tribunal. A remedies hearing took place over four days in July and September 1999. The Tribunal awarded Mrs Salmon £76,344.88 against the Prison Service and a further £1,000 against Officer David. The award against the Prison Service was made up as follows:a. A. "General Damages ". The Tribunal awarded £11,250 as compensation for "psychiatric damage" - that is, in respect of the depressive illness from which Mrs Salmon was suffering. They arrived at that figure by assessing "full" compensation for her injury at £15,000 and then reducing that figure by 25% on the basis that that illness was only caused to the extent of 75% by the acts of discrimination which it had found.b. B. Injury to feelings . The Tribunal awarded Mrs Salmon £20,000 "including £5,000 aggravated damages" for injury to feelings (together with a further £1,000 to be paid by Officer David).c. C. Loss of earnings . The Tribunal awarded Mrs Salmon £45,094.88 in respect of lost earnings. This comprised £21,734.08 for loss to the date of assessment, reflecting the fact that her illness had disabled her from work during this period; and £23,360.80 for future loss to October 2001. This date was chosen on the basis that the Tribunal believed, on the medical evidence, that it represented the date by which she would be fit to return to employment.[12]The Prison Service challenges the Tribunal's assessment under each of these heads. We consider them in turn. A. GENERAL DAMAGES[13]Two issues arise in relation to the Tribunal's award of general damages -(1) the initial "100%" assessment of £15,000; and(2) the 25% discount. (1) The Assessment of £15,000[14]It was common ground before us that the Tribunal was obliged to approach the assessment of damages for psychiatric injury on the same basis as a common law court in an ordinary action for personal injuries - see Sheriff v. Klyne Tugs (Lowestoft) Ltd [1999] ICR 1170 . The Tribunal heard evidence not only from Mrs Salmon but from two consultant psychiatrists who had examined her, Dr Jarman (called on behalf of Mrs Salmon) and Dr Turner (called on behalf of the Prison Service). The experts were agreed that Mrs Salmon was, and had since October 1996 been, suffering from a major depressive disorder. Neither the Tribunal's Reasons nor the evidence contains any convenient summary of her symptoms, which in any event were to some extent fluctuating. But the essential points seem to us to be that she was unable to work or to pursue an ordinary social life; that she left the house as little as possible, partly for fear of meeting people she knew; that she suffered from tiredness and low energy and took no exercise; that she had suffered a total loss of libido; and that she had episodes of more extreme depression with thoughts of suicide. She was taking anti-depressants. At the time of the hearing she had been suffering from this condition for the best part of three years and although both experts believed that her condition ought to improve very substantially with more effective treatment, to the point where she should be fit to return to full-time employment, there was no guarantee that she would make an early, or complete, recovery. There appears to have been some dispute as to how the severity of that depression was to be categorised; but there was no significant disagreement about matters of substance.[15]On the basis of that evidence the Tribunal regarded Mrs Salmon's illness as falling within the category of "moderately severe" psychiatric damage as defined in the 1998 edition of the Judicial Studies Board Guidelines for personal injury damages - for which a bracket of £9,500 to £27,500 is given. The figure of £15,000 falls slightly below the mid-point of that bracket. Miss Downing, who appeared for the Prison Service, submitted that it is too high. She drew our attention to various awards in Kemp & Kemp which she submitted supported a lower figure.[16]The assessment of damages for psychiatric injury caused by an act of unlawful sex discrimination is a matter of fact to be determined by the Employment Tribunal. It cannot be overturned in this Tribunal unless the Employment Tribunal is shown to have made an error of principle or to have arrived at a figure which is so much too high or too low as to be capable of being treated as perverse. There was some discussion before us as to whether that approach is different from that which is applied in appeals to the Court of Appeal from the award of personal injury damages in the common law courts. In theory there may be such a distinction, since the Court of Appeal in such cases has jurisdiction, unlike this Tribunal, to entertain an appeal on an issue of fact. However, the avowed approach of the Court of Appeal in such cases is only to interfere with assessments of damages when the Court at first instance can be said to have erred "in principle" and it seems to us that there is in practice little if any difference between the two appellate jurisdictions in this regard - see Coleman v. Skyrail Oceanic Ltd [1981] ICR 864.[17]Applying that approach, we can see no error of law or principle in the Tribunal's figure of £15,000. It is entirely within the range of possible awards for a psychiatric illness of the severity and duration of that suffered by Mrs Salmon. Indeed arguably it was on the low side. It is also to be observed that the figures given by the Judicial Studies Board pre-date the general uplifting in the level of personal injuries awards required by the recent decision of the Court of Appeal in Heil v. Rankin [2000] 2 WLR 1173 . (2) The 25% discount[18]As we understand it, before the Employment Tribunal Miss Downing argued that an award compensating Mrs Salmon in full for the psychiatric illness from which she was suffering would be wrong for two overlapping reasons:(a) The psychiatric expert evidence plainly disclosed that Mrs Salmon was a person who was vulnerable to psychiatric illness. She had been the victim of an episode of sexual abuse while living abroad when she was a child and had some continuing psycho-sexual problems of which it is unnecessary for us to give details here. She had suffered earlier, milder, depressive illnesses which were not related to the discrimination of which the Prison Service had been found guilty.(b) Mrs Salmon's case had been that her depressive illness was the result of the cumulative impact of all the matters of which she complained in her Originating Application, culminating in the dock book incident. Yet, as we have identified above, many of those matters had not been found to constitute unlawful sex discrimination, either because they were ruled out of time or because they were considered but rejected. Thus, it was argued, Mrs Salmon's illness was the result of a number of factors only some of which constituted unlawful conduct on the part of the Prison Service.[19]The Tribunal appears to have acknowledged the force of these submissions in principle. It gave effect to them by its finding, at paragraph 7 of the Reasons, that "... Mrs Salmon's condition since 4 October has been caused overall to the extent of 75% by the respondent's acts of discrimination, of which the incident of 4 October 1996 was by far the most severe, and to the extent of 25% by factors both outside her work and inside work, which we have found did not amount to discrimination on the grounds of sex. In making this finding we have accepted Dr Jarman's opinion that the words used by Officer David in the Dock Book had a more severe effect upon Mrs Salmon than they would have had upon a person who had not suffered sexual abuse in childhood of the kind which the Applicant had suffered .…" It accordingly applied a 25% discount to the compensation which it would otherwise have awarded in respect of Mrs Salmon's injury.[20]Miss Downing argues that the reduction of 25% was wholly inadequate and that on the evidence before it the Tribunal was obliged to discount the "100% figure" by at least a half. Before dealing with that contention, we should observe that there may be some room for argument about whether the approach adopted by the Tribunal was correct in principle. Conventionally, a claimant is entitled to recover damages on a 100% basis where the tortfeasor's act has made a material contribution to his suffering the injury in question, even though there may have been other (or even more) material contributory causes. On that basis, the fact that a victim has a pre-existing vulnerability to injury, or that the injury was only part of a complex of causes, is no ground - as such - for reducing his or her damages. That is not to say that it is wholly irrelevant. To the extent that the court concludes that by reason of that vulnerability the injury in question might well have occurred in any event, that factor would be reflected in the overall quantification of damages: that may produce a similar result to what would have been achieved by an apportionment of causation, but the reasoning is different and it will certainly not always do so. These principles have been applied to cases of psychiatric injury in such cases as Page v. Smith (No 2) [1996] 1 WLR 855 and Vernon v. Bosley (No 1) [1997] 1 All ER 577 . However, the law as regards material contribution and apportionment of causation has recently been considered again by the Court of Appeal in Holtby v. Brigham & Cowan (Hull) Ltd [2000] 3 All ER 420 (and see now, decided since the argument in this case, Allen v. British Rail Engineering Ltd [2001] EWCA CIV 242 ); and the conventional view summarised above may be in doubt. Neither party, understandably, was anxious on this appeal to enter into these treacherous waters. Specifically, there was no cross-appeal by Mr Fairweather on behalf of Mrs Salmon claiming that no discount should have been made at all. Pragmatically, that was no doubt a sensible approach, since even if we had acceded to such a submission this might well have been one of those cases where a similar result would have been reached by discounting for the likelihood that Mrs Salmon would or might have suffered a serious psychiatric illness in any event.[21]We proceed therefore to consider the exercise which the Tribunal performed of seeking to assess the extent of the contribution which the unlawful conduct by the Prison Service made to the causation of Mrs Salmon's illness. Such an exercise cannot, of its nature, be performed with any precision. Having given careful consideration to the expert evidence, it was for the Tribunal to make what was inevitably a very broad assessment. We are not prepared to say that its assessment was wrong in principle. No doubt Mrs Salmon was a vulnerable personality, and there were various threats to her psychiatric well-being which were not the result of sex discrimination by the Prison Service. But there was ample evidence on which the Tribunal was entitled to reach the view that it was the matters which it held to constitute sex discrimination - mainly, but not only, the dock book incident - which constituted the main cause of the serious depression into which she fell. Another tribunal on the same evidence might equally reasonably have made a larger discount; but we see no basis for saying that 25% was wrong in law. B. INJURY TO FEELINGS[22]The Tribunal gave its reasons for its award of £20,000 under this head as follows:
"11. In looking at injury to feelings, but for the Dock Book incident we should not have considered a large award. This is because whilst the other discrimination suffered by the applicant was unpleasant, it did not go beyond what unfortunately our experience tells us is not uncommon, where female employees form a small minority of the total workforce, especially in the public services. When we consider the words written the Dock Book however, we cannot accept that such words were written with anything other than the most malicious intent. The words and phrases speak for themselves and convey a desire to humiliate and degrade the applicant. Bearing in mind that the Dock Book was a document open for inspection by all Prison Officers attending Court, the writing must have been calculated to insult the applicant and to present her as an object of ridicule and distaste for fellow officers. It matters not that Mrs Salmon's husband was vilified as well. We have, as stated above, taken into account the nature of the childhood abuse suffered by the applicant, in relation to the Dock Book entry. 12. We consider that an element of aggravated damages is appropriate in this case to reflect the manner in which the episode was dealt with by both respondents. It was obvious to us that on 4 October there had an on-the-spot attempt to cover up the effects of the writing by blanking out names with a felt-tip pen and that that had been done by the Senior Officer at Court on that day (paragraph 31 of the Decision). In addition, Officer David evaded contact by the applicant and continued to deny responsibility for the matter until faced with expert evidence to the contrary (Decision paragraphs 32 and 35). We do not accept that there was any good reason for the second respondent's failure to take swift and decisive disciplinary action against Officer David following his admission of responsibility. There was no justification whatsoever for delaying such action until the conclusion of the Tribunal hearing, once the officer concerned was known to have been the perpetrator of the writings. The overall picture is one of the high-handedness and arrogance by the respondent's management in seeking to cover up this matter and, when it was exposed, to minimise it. In addition, the applicant must reasonably have been tormented by not being informed of what punishment had been meted out to Officer David and when. The Dock Book incident and its repercussions take this from low to high in the scale of injury to feelings. We have awarded the sum of £20,000 including £5,000 aggravated damages. In addition, we make an order of £1,000 against the first respondent personally."
[23]It is convenient to start with the question of aggravated damages. It has been clear since the decision of the Court of Appeal in Alexander v. Home Office [1988] ICR 685 that it is open to a tribunal in a discrimination case to include in (NB) its 'compensatory' award "... an element of aggravated damages where, for example, the defendants may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination." see per May LJ at p.692F. However, it is also clear that aggravated damages are awarded only on the basis, and to the extent, that the aggravating features have increased the impact of the discriminatory act or conduct on the applicant and thus the injury to his or her feelings: in other words, they form part of the compensatory award and do not constitute a separate, punitive, award. If this were not already sufficiently clear from Alexander , it was explicitly decided by the Northern Ireland Court of Appeal in McConnell v. Police Authority for Northern Ireland [1997] IRLR 625 (see at para 19); and McConnell was followed by this Tribunal in Tchoula v. ICTS (UK) Ltd [2000] ICR 1191 (see p.1206).[24]The Tribunal stated what it regarded as the aggravating features in this case at paragraph 12 of the Reasons, which we have set out above. Miss Downing submitted to us that the attempt by the senior officer at Court to blank out the offensive remarks in the dock book could not reasonably be regarded as aggravating conduct; also that Officer David's original denial could not be treated as aggravating conduct by the Prison Service, who in fact took considerable steps to identify him. We are inclined to accept both points; but it seems to us clear from the paragraph read as a whole, and in the context of the Tribunal's findings on liability (and in particular paragraphs 24-25), that these factors were not fundamental to its award of aggravated damages. The real basis of those findings was its view that the Service perceived the entire incident as trivial and communicated that perception to Mrs Salmon by the way that it dealt with it. The Tribunal was plainly struck in particular by the postponement of any disciplinary action against Officer David until after the conclusion of these proceedings, which it explicitly found added to the injury to Mrs Salmon's feelings. In our view there was a sufficient basis for the Tribunal to find aggravating conduct here; and the Tribunal plainly addressed the correct question, namely the extent to which that conduct aggravated the injury to Mrs Salmon's feelings.[25]The question thus becomes whether an award of £20,000 for injury to feelings (including the aggravation of that injury by the matters principally relied on by the Tribunal) was so excessive as to constitute an error of law. We approach that question in accordance with the principles helpfully summarised in Tchoula . There is a distinct question of to what extent it is relevant in considering this issue to have regard to the fact that Mrs Salmon is receiving a substantial award under a separate head for psychiatric injury. We consider that question at paragraphs 28-30 below; but for the present we leave it to one side.[26]Miss Downing submitted that the figure of £20,000 was wholly excessive. She referred us to the decision of this Tribunal in Prison Service v. Johnson [1997] ICR 275, in which the principles governing the amount to be awarded for injury to feelings are set out. In that case the Appeal Tribunal refused to interfere with an award of £28,500 (about £32,500 in today's money), comprising £21,000 for injury to feelings plus £7,500 aggravated damages, in what was a very serious case of a campaign of harassment and humiliation against a black prison officer over a period of some 18 months (but where the employee had suffered no injury to his health). She submits that the present case is in a different league. The Employment Tribunal made it clear that the bulk of its award was intended to reflect a single act of discrimination - the dock book incident - and Miss Downing submits that, gross though it was, a single incident of that kind is not remotely comparable with the conduct which justified the award of £21,000 in Johnson .[27]We accept that, viewed as compensation for the distress and humiliation caused by the dock book incident alone, an award of £15,000 - or £20,000 including the aggravating features - would be so excessive as to constitute an error of law. But that incident cannot in our view be seen in isolation from the other findings of sex discrimination which the Tribunal had made. The impact on Mrs Salmon's feelings of the offensive and humiliating entries in the dock book was likely to be far greater against the background of the series of incidents which we have summarised at paragraphs 5 to 8 above. Although the Tribunal did not regard these incidents as meriting a high award in themselves, it does not follow that they do not constitute an important context for the dock book incident. Miss Downing submitted that there was here no finding of a campaign of humiliation and harassment such as occurred in Johnson . That may be right, but the Tribunal's findings set out in paragraphs 5,7 and 8 above do make clear that this is more than a case of one or two isolated incidents. We are bound to say that even on that basis the award of £20,000 for injury to feelings does seem to us to be high. But we must remind ourselves that the Tribunal had the advantage of seeing Mrs Salmon and assessing the impact on her of the conduct for which it held the Prison Service liable; and in the end we are not prepared to say that the award is so high as to be perverse.[28]However, Miss Downing has a further point. Whether or not the award of £20,000 is reasonable when viewed in isolation, she submits that there is a considerable overlap between the injury for which she would be being compensated under that head and the injury covered by the award of 'general damages' - i.e. her psychiatric injury; and, she says, the two awards taken together give rise to a substantial degree of double recovery.[29]We accept that there is a risk of double recovery in cases like the present. No doubt in principle 'injury to feelings' and psychiatric injury are distinct. In Alexander (above) May LJ clearly distinguished them when he said (at p.692E):
"... Injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, in many cases for life [our emphasis]."
Likewise in Prison Service v. Johnson (above) Smith J (at pp.283-9) accepted counsel's submission that if the applicant had suffered 'injury to health' that would have been the subject of a separate head of compensation. However, neither of those were cases where awards were made under both heads; and in practice the two types of injury are not always easily separable. In a given case it may be impossible to say with any certainty or precision when the distress and humiliation that may be inflicted on the victim of discrimination becomes a recognised psychiatric illness such as depression. 'Injury to feelings' can cover a very wide range. At the lower end are comparatively minor instances of upset or distress, typically caused by one-off acts or episodes of discrimination: this appears to be the type May LJ had in mind. But at the upper end the victim is likely to be suffering from serious and prolonged feelings of humiliation, low self-esteem and depression; and in these cases it may be a fairly arbitrary whether the symptoms are put before the tribunal as a psychiatric illness, supported by a formal diagnosis and/or expert evidence. It appears from an article to which we were helpfully referred in Equal Opportunities Review for September/October 2000, in which recent compensation awards in discrimination cases are reviewed, that tribunals in such cases do sometimes treat 'stress and depression' as part of the injury to be compensated for under the heading 'injury to feelings'; and we can see nothing wrong in principle in a tribunal taking that course, provided it clearly identifies the main elements in the victim's condition which the award is intended to reflect (including any psychiatric injury) and the findings in relation to them. But where separate awards are made, tribunals must be alert to the risk that what is essentially the same suffering may be being compensated twice under different heads.[30]The question in this case is whether such double counting has occurred. We have not found this easy. The Tribunal did not explicitly address the question of the relationship between the two heads of damage. It is on the face of it surprising that Mrs Salmon should receive £20,000 for 'injury to feelings' and only £11,250 (albeit discounted from £15,000) for psychiatric injury: intuitively, a fairly severe depressive illness ought to attract a higher award than 'mere' injury to feelings, however great. But this apparent mismatch may itself reflect the artificiality of trying to divide Mrs Salmon's injury into two separate boxes. It may well be that the Tribunal included in 'injury to feelings' elements that could equally have been included in 'general damages', in respect of which its award is - as we have observed - certainly not over-generous. It is necessary to stand back and consider the non-pecuniary award as a whole. In our judgment, if one considers the totality of Mrs Salmon's suffering - from the point of the first unlawful acts found by the Tribunal, through the immediate impact of the dock book incident, and into the prolonged depressive illness which followed - a total award of £31,250 cannot be described as wholly excessive, even taking full account of the causation issue which led to the 25% discount. In the light of that overall judgment, we are not prepared to say that the award of £20,000 under this head was vitiated by double counting. C. LOSS OF EARNINGS[31]Miss Downing's argument under this head was that the Tribunal could not on the evidence have found that Mrs Salmon would, but for the acts of discrimination found, have remained in the Prison Service up to October 2001. She submits that there was clear evidence - with which the Tribunal did not explicitly deal - that Mrs Salmon was finding the pressure of working with male prisoners, irrespective of the conduct of her colleagues, intolerable, and that the Prison Service had justified reservations about her ability to do her work well and to get on with her colleagues. In these circumstances, she submits, the only possible finding was that she would have left the Service in any event no later than the planned date for the closure of C wing, which was the only environment in which she might possibly have been able to continue working.[32]It is quite clear that the Tribunal considered those submissions. It addressed them at paragraph 13 of the Reasons and made an explicit finding that 'the applicant would have continued in post': it also found, in paragraph 14, that she would have been able to continue in service notwithstanding the closure of C wing. Those are findings of fact with which we should not interfere unless we were satisfied that they were not open to the Tribunal on the evidence. We do not believe that that is the case. The material which Miss Downing drew to our attention no doubt raises a question as to whether Mrs Salmon would have continued in the Service for as long as five years; but it does not compel the answer that she would not. 33. We accordingly dismiss the appeal.

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