ASTON CLARK SOLICITORS v MR C EGEMONYE [2001] UKEAT 718_00_1903

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 718_00_1903

Case No Appeal No. EAT/718/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

ASTON CLARK SOLICITORSAPPELLANT

MR C EGEMONYERESPONDENT

Before

Mr Recorder Burke

Date 19 March 2001

[1]APPEARANCES For the Appellants MR M SETHI (of Counsel) Instructed by: Aston Clark Solicitors 239 High Street Acton Lane London W3 9BY MR RECORDER BURKE QC This is the preliminary hearing of the appeal of the Appellants, a firm of solicitors, Aston Clark, who are based in Acton in West London, against the Decision of the Employment Tribunal at London North, chaired by Mr Rabin and sent to the parties on 8 April of last year.

[2]The Employment Tribunal decided that the Appellants had been guilty of racial discrimination towards the Respondent, Mr Egemonye, a solicitor employed by them, and that they should pay to him £11,000 by way of compensation for injury to feelings, £3,000 by way of aggravated compensation, and a sum just in excess of £1,500 by way of damages for breach of contract.

[3]The facts, in brief outline, were that the employee who is of African ethnic origin, qualified as a lawyer in Nigeria, came to England in 1995, qualified as a solicitor here in 1997, and obtained a practising certificate in 1998. He was employed by the Appellants as an Assistant Solicitor, from 5 January 1999 until 13 April of that year. On 30 March of that year, he was given a letter terminating his employment on one month's notice.

[4]On 13 April, during the course of that month's notice, his employment was summarily terminated. He initiated the present proceedings by an Originating Application dated 11 May 1999; his claim was heard by the Tribunal over five days in January and March of last year, both parties were represented by Counsel (although the Decision represents the person appearing on behalf of the employers as a solicitor).

[5]In addition to his race discrimination claim, the employee put forward a contract claim on the basis that he had not been paid at all for the period following the letter dismissing him with notice on 30 March. The Appellants counterclaimed for a total of about £650, made up of the cost of examining the employee's files after he had left, and the supposed loss of income from a number of clients who had taken their work elsewhere when the employee left. These counterclaims were withdrawn during or at the end of the hearing.

[6]The Tribunal's Decision on the claims and on remedies is set out in great detail, over some twenty seven pages. They identified seven heads under which the employee's complaints of racial discrimination could be grouped. In the case of four of them, including the decision of the Appellants to dismiss the employee on notice, his claims of race discrimination were rejected. In the case of three of them, including the subsequent decision to dismiss the employee summarily, during the course of his notice, the Tribunal found that that had been discrimination; they found that summary dismissal was not justified and therefore there had been a breach of contract, and they awarded contractual compensation for the notice period as a whole.

[7]In their amended Notice of Appeal, signed by the Appellants, and drafted, one suspects, by their senior partner, Mr Aslam - but it is only a suspicion and nobody has told us who actually drafted it - the Appellants set out a very large number of grounds of appeal.

[8]In effect, Mr Sethi, on their behalf, has today wholly re-orientated the case, addressing us on a rather smaller, but still substantial number of criticisms of the Tribunal's decision, Mr Sethi has not put before us a draft amended Notice of Appeal, setting out the grounds on which he says the Appellants now wish to proceed with their appeal; for present purposes he has asked us to treat his Skeleton Argument as containing the grounds of appeal, on which the Appellants rely.

[9]The first group of grounds of appeal set out in the original Notice and amended Notice of Appeal asserted, with a large degree of particularity, that the Appellants did not receive a fair hearing at the hands of the Tribunal; indeed, reference was made to a breach of the Appellants' right, at common law, and under

Article 6 of the European Convention on Human Rights

to a fair hearing.

[10]If one reads the particularity of the Notice of Appeal, one sees that twenty four separate criticisms of the Tribunal's Decision are therein contained. The result of that part of the Notice of Appeal was that the Notice had to be sent to the Chairman and to the members of the Tribunal for their comments; a great deal of time and, no doubt, expense was taken up. None of those grounds of appeal leading to the assertion that the hearing was unfair or in breach of the European Convention or that there was bias or anything of the sort has been persisted in today, and it is unfortunate in the extreme that it was thought right to put them in the Notice of Appeal and the amended Notice of Appeal, when, seemingly, it is now thought that there was not sufficient in them even to amount to an arguable case.

[11]In the last of the grounds of the original Notice of Appeal, the Appellants assert that the Tribunal's Decision on breach of contract was:

"inconsistent with the evidence"

That last quotation is indicative of a belief, seemingly running through the head of the draftsman of the amended Notice of Appeal, that this Appeal Tribunal has the function of reconsidering or reassessing the evidence; we must emphasise that it does not. Appeals to this Appeal Tribunal lie only on a matter of law. Findings of fact are for the Employment Tribunal and can only be the subject of an arguable ground of appeal if it is arguable, in the case of any finding of fact, that it is unsupported by evidence or that it is perverse (as that word has been defined many times) or if some important piece of evidence has been omitted or has been included when it did not exist. Many of the grounds of appeal set out in the original Notice of Appeal seemed to us to be based on the Appellants' sensitivity to the findings of the Tribunal rather than any reasoned assessment of the Tribunal's decision so as to identify arguable errors of law on the Tribunal's part. Having said that, we do not propose to hold any of those matters against the Appellants, whose case has been knocked into shape by Mr Sethi; we are grateful to him for the way in which he had put the arguments before us today.

[12]There is one other matter, however, that it is necessary to mention. The Practice Direction which deals with preliminary hearings says in terms that preliminary hearings are normally expected not to take longer than thirty minutes. We acknowledge that we, and in particular the Chairman of this Appeal Tribunal, has asked a number of questions in the course of the hearing of this preliminary hearing, which may have stretched out, to some extent, the length which it has taken; but there were so many points that Mr Sethi has had to make that it must have been absolutely obvious, before this application started, that it was going to take much, much longer than half an hour, and in the end, the argument took somewhere in the region of something like two hours.

[13]In cases in which that is to happen (and one recognises of course that there are complex cases; discrimination cases often are complex cases) in which a preliminary hearing must take longer than thirty minutes and even must take longer than twice that, it is important that the appellant should inform this Appeal Tribunal that more time is needed so that more time can be allocated, without prejudicing other cases in the list, which either have to wait longer than was expected, or (as has turned out today to be the case) have to go off without reaching an effective hearing.

[14]With that introduction we turn to the arguments that have been addressed to us by Mr Sethi this morning. We should start by recording Mr Sethi's acceptance that the Tribunal, in the passage in its Decision in which it directs itself on the law, at paragraphs 35 - 38, directed itself correctly, and in particular, directed itself to the three-stage approach to a discrimination case such as this; namely, has there been differential treatment? Is the explanation put forward by the employer for that differential treatment an explanation which the Tribunal will accept or reject? If it is rejected, is an inference of race discrimination, or other discrimination, to be drawn?

[15]Mr Sethi has argued, in respect of the three areas in which the Tribunal found that the Appellants had been guilty of discrimination, that the Tribunal has not, in the case of each individual area, set out as part of its conclusion its passage through each of those three stages. We do not regard that criticism as giving rise to an arguable point of law. There is authority in this Tribunal that it is not necessary for a Tribunal to go through each and every allegation and to set out the three stages of their reasoning individually in relation to each. The Tribunal, having directed itself correctly, as is accepted, was well aware throughout its recording of its Decision what the process was and, no doubt, applied the correct approach as it had directed itself to do, in each case.

[16]I turn to the arguments that were presented to us in relation to each of the three areas which I have mentioned. The first is a two-headed area because two separate items of discrimination, one in relation to the failure of the employers to provide the employee with a Dictaphone, and the second, relating to their failure to supply him with keys to the office, arise.

[17]So far as the keys are concerned, the Tribunal found that all other qualified staff were given keys to the office when they started; that Mr Egemonye, the employee, had not been; and that that less favourable treatment, in the absence of a satisfactory explanation, was treatment case of which they could infer and they did infer, race discrimination.

[18]Mr Sethi, in relation to the keys, makes three points. Firstly, he says that there was no evidence that the employers had given keys as soon as they joined the firm to all other staff. The Tribunal recalls at paragraph 11 that the evidence of Mr Newton and Ms Watson was to that effect; but, says Mr Sethi, that is not what they said. It is interesting that at paragraph 40 of our bundle the Tribunal puts it in a slightly different way, referring not to "all staff" but to "all qualified staff"; and therein may lie the answer to the point. But it is accepted by Mr Sethi that Mr Newton and Ms Watson did say that most or the majority of staff were given keys when they first came to the firm; and, in our view, if the Tribunal went slightly too far in saying "all other staff" as opposed to "most other staff", that is a distinction without a substantive difference. There is no reason to suppose that if the Tribunal had not overstated the evidence, if they did, in the way alleged, and had set out as the evidence that most other staff had been given keys as soon as they joined the firm, that they would have acted otherwise than by proceeding to reject the explanation that was given, and to infer racial discrimination, as they did.

[19]The second argument in relation to the keys is that the Tribunal ignored their own findings about a different employee, called Mr Hashmi, who told the Tribunal that he also did not receive a set of keys when he first joined the firm. In part, the answer to that point is provided by what we have just said about the first point, because Mr Hashmi's evidence would have been entirely consistent with the finding that most other staff had been given keys, although perhaps, inconsistent with the finding that all other staff had been given keys. But the Tribunal recited Mr Hashmi's evidence in paragraph 11 of its Decision in detail, and it was not necessary, when it came to its Decision in paragraph 40, to recite it all again. There is nothing to indicate or to suggest that they did not have that evidence fully in mind. This is, if we may say so, an example of a very detailed criticism of a small area of fact which does not, on examination, give rise to an arguable point of law, such as to undermine confidence in this Decision.

[20]Thirdly, it is submitted that the Tribunal concluded that the explanation given by the employers was irrelevant. That submission is founded on the comment of the Tribunal, in response to the explanation given that Mr Egemonye was not an early riser and therefore, implicitly, did not need the keys to the office that that explanation was neither here nor there. We do not see those words as indicating that the Tribunal was regarding that explanation as irrelevant; what the Tribunal, in our judgment, should be taken to have been saying was that it was a hopeless explanation, rather than an irrelevant explanation (as indeed, one might think that it was - but our view of the matter is irrelevant). The Tribunal were entitled to come to the conclusion that that was an explanation which did not persuade them in the employer's favour for one moment. What would happen, for instance, if the employee, habitually a man who allegedly did not get up early, decided that he would get up early one morning and go into work to try to catch up?. Or if other staff were late, or if other staff had forgotten to put the clock forward or anything of that nature? One can well understand why the Tribunal might have regarded that explanation as being one which did not carry any weight. We see no arguable ground of appeal in relation to the keys.

[21]We move on, therefore, to the Dictaphone. The Tribunal found, similarly, in the case of the Dictaphone that they were not satisfied with the Respondents' explanation of the non-provision of a Dictaphone and that they could and did infer race discrimination in that respect. The first criticism made in this area was that the Tribunal did not deal with the evidence of a witness (who we think gave evidence only on paper), Ms Braithwaite, who said that the employee did not want to use a Dictaphone. The Tribunal recorded that she was a witness; they did not, in dealing with the Dictaphone issue, refer expressly to her evidence; but it is not necessary for the Tribunal to go through every piece of evidence. It was not vital evidence. If it was accepted as being correct, it did not follow that there was no true complaint to be made. Mr Egemonye may well, for example, have been reluctant, in the face of a junior member of staff, to raise with her the real reason why he was being treated in such a way that he was not given a Dictaphone. It is plain that the Tribunal rejected the evidence of Mr Aslam and Mr Groombridge, on behalf of the Appellants on this issue and preferred the evidence of the employee; and it is difficult to see how the non-reference to Ms Braithwaite's evidence could give rise to any arguable ground of appeal.

[22]Secondly, it is submitted that the Tribunal erred in describing, as it did, the evidence of Mr Groombridge and Mr Aslam on this issue as contradictory. The evidence is set out in some detail in paragraph 19 of the Decision. What the Tribunal did was to reject Mr Aslam's evidence that he had taken steps to meet the employee's request for a Dictaphone by instructing Mr Groombridge to give him one; and by rejecting that evidence the Tribunal, necessarily, must be taken to have been rejecting the evidence of Mr Groombridge, who said that he had been told by Mr Aslam to do what the Tribunal had found Mr Aslam did not tell him to do, because they had found that Mr Aslam had ignored the employee's requests for a dictating machine. Thus Mr Groombridge's evidence fell by the wayside. The use of the word "contradictory" may not have been entirely accurate, but the Tribunal was entitled to reject the evidence of Mr Aslam, and with it the evidence of Mr Groombridge, and with those rejections, the explanation of the employers. Again, we see no arguable ground of appeal there.

[23]Thirdly, it is submitted that the explanation which was put forward was innocent of racial content. We are bound to comment that the explanation which is put forward by employers is almost always innocent of racial content; rarely is it anything else. The question for the Tribunal was whether the explanation was accepted or not. It was not. Once it was not, and once there had been evidence of differential treatment, as there plainly was, then the Tribunal was entitled to proceed, there being evidence throughout the case of a racial difference between Mr Egemonye on one hand, and most of the employees employed by the Appellant, on the other, to infer racial discrimination , as it did.

[24]Fourthly it is submitted that the inference which the Tribunal drew was based solely on the contradiction to which we have already referred. We do not propose to go through this point in detail; the inference was not based solely on the contradiction; it was based principally on the rejection of the evidence of Mr Aslam and Mr Groombridge, and therefore, rejection of the employer's explanation.

[25]Thus, in relation to the Dictaphone too, we see no arguable grounds of appeal.

[26]The next area relates to what happened to the employee when a new employee, Ms Prasana, an Asian solicitor, joined the firm on 12 March. The employee was told that he would have to move away from his desk into another room, although there were other unoccupied desks available. Later, it turned out that the new member of staff did not like the desk from which the employee had been working, and thus, the employee returned to his desk. The Tribunal, having set out the facts relating to that, deal with their conclusions in paragraph 40, page 42; they say:

"This was a small matter which Mr Egemonye did not find particularly offensive but is indicative of Mr Aslam's view of Mr Egemonye as being expendable and moveable. This was less favourable treatment of him and we can infer race discrimination."

[27]Two points are taken in this area. The first is that, the Tribunal, having found that this was not a matter which the employee found to be particularly offensive there was no evidence of a detriment to Mr Egemonye. We do not agree and do not think that the Tribunal have arguably erred. A small matter may give rise to a small detriment, but it does not follow because the detriment is small and still less because the employee regards it as a small detriment, that there is no detriment. Whether there is a detriment or not has to be looked at objectively; and in any event, something which is not seen as particularly detrimental at the time may turn out later to be of greater significance (although we are not suggesting that that was so in this case). We do not suppose for one moment that this particular episode in the history was one which bore largely on the Tribunal's decision as to the amount of compensation for injury to feelings; but they were entitled to conclude that there was a detriment, as, to a modest degree, there clearly was.

[28]The second criticism is that what the Tribunal have done in this area is to conclude that the employers had behaved unreasonably and to assume that from the unreasonableness of the employers that there was racial discrimination. We see no trace that the Tribunal has taken that approach or adopted that reasoning in its decision on this issue.

[29]We turn, therefore, to the third, and obviously most substantial area, in which the Tribunal found that there was discrimination, namely the summary dismissal of the employee, the Tribunal having earlier found that the giving of a notice to dismiss at the end of March was for appropriate commercial and professional reasons and not tainted by race. Having so found, when they came to consider the conversion of the dismissal on notice to a summary dismissal on 13 April, the Tribunal found that there had been racial discrimination.

[30]Mr Sethi puts the argument here under a number of heads. Firstly, he says that there were no findings of fact in the factual part of the Decision to support the conclusion, expressed at page 43 paragraph 40 of the Decision, that Mr Aslam had continued to complain about Mr Egemonye's accent, it being not in dispute that Mr Egemonye has an accent from Africa, or more locally perhaps, from Nigeria, which sometimes made his diction less clear than in the case of somebody who was born and bred here. The Tribunal were not confined in their fact finding exercise to that part of the Decision in which they set out the facts. It is not infrequently to be seen in a decision that further findings of fact find their way into the in part of the Decision which deals with conclusions, as was the case here. The Tribunal was plainly entitled to find what they did in relation to Mr Aslam's conduct about Mr Egemonye's accent, and we see no way in which it could be said that there is, in that respect, any finding of fact which is susceptible to attack.

[31]The next criticism is that the Tribunal had found, in paragraph 18 of its Decision, that what Mr Aslam was concerned about was not Mr Egemonye's accent but the fact that he was sometimes difficult to understand and that such a finding was inconsistent with their conclusions on the issue of summary dismissal, insofar as those conclusions were based on Mr Aslam's attitude towards, and conduct arising from, Mr Egemonye's accent. We do not read the Tribunal's decision, nor do we think it is arguable that it should be read, as finding that Mr Aslam's problem was understanding Mr Egemonye rather than the accent itself. It is certainly the case that Mr Aslam, in a meeting on 9 April with Mr Egemonye, noted by Mr Hashmi, was putting that explanation forward. But we do not see that the Tribunal accepted that that explanation was correct on the facts; and therefore we see no respect in which it could be said in this area that the Tribunal has, in some way, contradicted itself or reached a conclusion which is inconsistent with an earlier finding. Even, in any event, if the argument about accent was an argument about difficulty of understanding, it would still be for the Tribunal to decide whether the actions of Mr Aslam overall, in relation to the summary dismissal, were such as to give rise to an inference of racial discrimination. It was not merely a matter of accent that was in issue in relation to the summary dismissal.

[32]Thirdly, Mr Sethi submits that when in paragraph 40 of its Decision, at page 43, the Tribunal say as follows:

"…..it is not a coincidence that within two working days of the meeting at which Mr Egemonye first raised the issue of race by reference to the complaints about his accent and harassment by Mr Aslam, Mr Aslam decided summarily to terminate Mr Egemonye's employment."

In that passage, the Tribunal have indicated that they came to their conclusion that Mr Aslam was reacting adversely to Mr Egemonye by reason of Mr Egemonye's carrying out a protected act. There was, so far as we understand it, no victimisation issue which was raised before the Tribunal. However whether or not the history in this area, as found by the Tribunal, amounted to victimisation, it does not seem to us even arguable that that would have excluded a finding of racial discrimination; the two are not necessarily mutually exclusive. The Tribunal was entitled to find, as it did, that the action which the employees took was as they expressly found, motivated or tainted by racial discrimination, whether the race discrimination was in response to a protected act or not.

[33]The next submission is that, in paragraph 43 of its Decision, in support of its finding that there was a racial difference between Mr Egemonye and others employed by the Appellants, the Tribunal found that Mr Egemonye was the only black African employee. That does appear to have been technically an error. The Tribunal had before it a witness statement from an employee, Ms Olatunde, who was obviously of black African origin. It also had a witness statement from Ms Braithwaite, who we are told was also of black African origin, or at least of Afro-Caribbean origin, although whether the Tribunal knew that that was her origin from her witness statement we do not know. But this small error is not of a type which arguably invalidates this Decision. The Tribunal's conclusion, it being accepted and indeed expressly found that the firm was predominately Asian, would have been precisely the same, it seems to us, if instead of saying that Mr Egemonye was the only black African employee, they had said that he was one of two or three in a situation in which the make-up of the firm was predominately Asian.

[34]Next, Mr Sethi points to the Decision of the Tribunal, in paragraph 42, that the reasons given by Mr Aslam for his decision summarily to dismiss the employee (which were many and different;) were:

" inconsistent, and in some respects, trivial"

He submits that the Tribunal should have particularised their reasons for so finding and that their failure to do so is, in effect, a failure to live up to the principles set out in the case of Meek . Once again, and this may sound repetitive by now, we see no arguable ground of appeal here either. This was a lengthy, detailed consideration of this complicated case by the Tribunal; they indicated precisely why they rejected Mr Aslam's justification for the summary dismissal, namely that he gave different and varied reasons which were inconsistent and trivial, and it was not necessary, in our judgment, for them to go into more detail.

[35]The next complaint is that the Tribunal did not give adequate consideration to the employer's reasons for the summary dismissal. Leaving aside the overlap between this point and the previous point, we would simply draw attention to the express rejection of those reasons in paragraph 42, and to the first sentence of paragraph 43 which records:

"We find nothing in the events of 12/13 April which could justify the Respondents in dismissing Mr Egemonye instantly."

It was not necessary for the Tribunal to set out in detail what the employer's reasons were; they have clearly considered them, and have made an express finding as to them, with which we do not see that this court could arguably interfere.

[36]In his Skeleton on this issue, as a last ground under the head of "Summary Dismissal", Mr Sethi advances the argument about the contrast between the lack of reasonableness on the one hand, and the discrimination on the other. We have already dealt with that in another context, and we repeat in this context what we said formerly on that issue. There is nothing to indicate that the Tribunal has, or arguably has, made that error.

[37]We think that we have now dealt with all of the arguments presented by Mr Sethi on the summary dismissal area.

[38]We turn next to wrongful dismissal. Here Mr Sethi takes one point and one point alone. The Tribunal found, and it was a natural consequence of their earlier finding that the reasons put forward by the employers did not justify summary dismissal that in summarily dismissing, the employers were in breach of contract. Mr Sethi submits that the Tribunal should have taken into account what the employers discovered subsequent to the dismissal but were unaware of at the time of the dismissal, namely that the employee had not come to work on 13 April, not because he was sick as he telephoned in to say, but because he did not want to carry out an instruction given to him by Mr Hashmi and because he had gone to see his solicitors. Thus, it is argued, that learning of those matters later, even if there were no satisfactory reasons in the mind of Mr Aslam at the time of the dismissal, the employers were entitled to rely on those matters, as justifying their summary dismissal. As a matter of law, the submission is of course correct. The employers would have been entitled to rely on it.

[39]However, we asked Mr Sethi whether the employers did take this point in front of the Tribunal, they being represented by Counsel whose written argument is present and available. Mr Sethi tells us that there is nothing in the written argument put forward by Counsel which indicates that this point was taken but that his instructions are that it was. There is certainly no comment about the point in the Tribunal's Decision; and in this careful Decision, one might have expected them to refer to it if it had been taken. But, in any event, it seems to us that if the point had been taken, the Tribunal would have certainly rejected it. In the context of the whole of this case, it is highly unlikely that they would have regarded the conduct upon which Mr Sethi now seeks to rely as being sufficient, there being only one day's absence and the giving of a false explanation given, in the context of a series of disputes leading to the need to investigate racial discrimination. It is highly unlikely that the Tribunal would have regarded that conduct in the context as sufficient to justify a summary dismissal. This point, too, does not give rise to an arguable ground of appeal.

[40]That brings us to remedies; and we propose to deal with that area quite swiftly. First of all, it is said that the award of £11,000 by way of compensation is outside any acceptable bracket. We do not see that argument as one which is properly arguable. The Tribunal has a very wide discretion; no case has been shown to us which establishes a bracket outside which this award fell; some may see it as being a high award, having regard to the heads on which discrimination was found; but it is not for the Employment Tribunal to even consider interfering with an award of damages, unless the award is so much out of line that it appears to be perverse or unsustainable, and we do not think that that argument here can succeed.

[41]Secondly, it is pointed out that there was no substantial continuing campaign of racial discrimination here; and that as a fact is undoubtedly right. But the Tribunal were aware of that; they gave their compensation decision immediately after their decision on liability. They were, in particular aware (because they had just told the parties so) that they had not found discrimination in relation to the initial decision to dismiss, as opposed to the decision summarily to dismiss; and nothing in the Decision or remedies shows that the Tribunal had strayed into counting into the matters for which compensation was due, what arose from the areas of the treatment of Mr Egemonye in which the Tribunal had found that there was no discrimination.

[42]Mr Sethi refers us to the Tribunal's finding that Mr Egemonye's failure to succeed at an interview for a job in the Army Legal Service derived, to an extent at least, from the race discrimination in respect of which the Tribunal was assessing compensation. He submits that there was no evidence to support that conclusion. It is to be noted that the Tribunal did not say that its failure to succeed was wholly caused by race discrimination or that he would have got the job in the absence of race discrimination. There was clearly some evidence to support the finding, because the psychologist, Ms Levy, whose evidence report on behalf of the employee, was given in a written report, said:

"….my overall opinion is that this man's 'front' or 'false self' has been ruptured by his experience of racism at his former place of work. For him he has suffered a major trauma" "…….this man will need some form of psychotherapy to help him work through this traumatic experience."

It seems to us that that evidence amply supports the finding that, during a period in which he was still suffering from that trauma, he performed less well at an interview than he otherwise would have done, and that to an extent, unspecified, contributed to the disappointing result of the interview with the Army Legal Service.

[43]Finally, it is said on this issue, that the employers were taken by surprise by the employee's side serving an expert's report on day one of the hearing. They may have been taken by surprise; it seems that the report was not disclosed in advance as it should have been; but the Tribunal, in its discretion, allowed the evidence to be given. It is not suggested that Counsel on behalf of the employers had asked that the psychologist be called so that she could be cross-examined, although we are told that the employers made it clear that they did not accept the report was correct. If they did not so accept, why no attempt was made to cross-examine the psychologist is not easy to understand, but no doubt Counsel had his reasons. In any event, if the content of the report was seriously contested, one would have imagined that the employers would have sought an expert of their own; it cannot be said that they did not have time to do so, because the hearing took place on three days in January, and then continued again on 21 March. There is no suggestion that at any time between 24 January, when the hearing started, and 22 March when it concluded, that the employers had applied to the court for leave to call an expert, had asked for Mr Egemonye to be seen by an expert on their behalf, or had applied for an adjournment if there was a difficulty in getting one. There is, in our view, no arguable point here either.

[44]Finally, we turn to aggravated damages. We are, of course, well aware that aggravated damages should be used not as punishment but as a further award to the employee, or the person suffering from racial discrimination, as a result of aggravating features about the case which may aggravate his injury to feelings. We do not see it as being arguable that the Tribunal strayed from the proper course in finding that this was a proper case for aggravated damages. They identified a number of reasons why the Applicant's sense of injury could have been heightened, to use words which they themselves use in paragraph 55 of their Decision. We refer as examples, to the oppressive use of counterclaims which were withdrawn before the end of the merits hearing the introduction of evidence, which the Tribunal found, was of dubious provenance, the Tribunal having concluded that in two respects documents which were altered or concocted after the event, by the employers had been put before them, the refusal of the employers to pay any money at all, from the end of March, when they gave one month's notice, and the letter which they wrote to the employee's next employers, which any Tribunal would have regarded as open to criticism and likely to aggravate injury to feelings in an employee who learned of it. We therefore see no arguable criticism of the Tribunal can be made in this area either.

[45]This has been a lengthy Decision, particularly lengthy on a preliminary hearing, but we have taken pains, because we can tell that the Appellants feel concerned and worried by this Decision, to go through each argument put before us and to deal with each head in the manner that we regard as being appropriate. Our conclusion is that there are no arguable grounds of appeal and the appeal is therefore dismissed.