LONDON FIRE & CIVIL DEFENCE AUTHORITY v MR MAXWELL FASIPE [2002] UKEAT 0042_00_2003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0042_00_2003Case No Appeal No. EAT/0042/00 & EAT/0573/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON FIRE & CIVIL DEFENCE AUTHORITYAPPELLANTMR MAXWELL FASIPERESPONDENT
Before
MR COMMISSIONER HOWELL QCMR D CHADWICKMR K EDMONDSON JPDate 20 March 2002
[1]APPEARANCES For the Appellant MR CHRISTOPHER JEANS QC MR PETER WALLINGTON and MR PAUL STEWART London Fire & Defence Authority Main Building Fire Brigade Headquarters 8 Albert Embankment London SE1 7SD For the Respondent MRS LAURA COX QC and MR MOHINDERPAL SETHI Messrs Webster Dixon Solicitors 21 New Fetter Lane London EC4A 1AW MR COMMISSIONER HOWELL QC These are two separate appeals by the London Fire & Civil Defence Authority ("the Authority") in racial discrimination proceedings brought against them in the London South Employment Tribunal by Mr Maxwell Fasipe. Mr Fasipe was never one of their employees, but was a temporary agency worker assigned to do clerical work and computer data entry in the statistics and management information ("SMI") section of the Authority's Operations Department from 8 December 1997 to 2 July 1998. There is no doubt or dispute that in that capacity Mr Fasipe was entitled to the protection for contract workers under Section 7 Race Relations Act 1976, or that the Authority was the "principal" for this purpose against which proceedings could properly be brought for any discrimination contrary to that section. Mr Fasipe's complaints were made partly under that section, for alleged detriments suffered in the course of his work at the Authority, and partly under Section 4 for alleged direct discrimination by refusal or deliberate omission to offer him direct employment with the Authority itself.[2]The first appeal relates to the decision of the Tribunal on liability, given after five days of hearings spread over the period 22 April to 9 July 1999 with further consideration in July and September. That was contained in a sixteen page decision incorporating Extended Reasons sent to the parties on 24 November 1999. In it the Tribunal held the Authority liable to Mr Fasipe for direct racial discrimination under four heads, two relating to not offering him direct employment and two related to the conduct towards him of employees in the SMI section, and one head of victimisation not alleged in the Originating Application or by Mr Fasipe himself, but added as an issue at the suggestion of the Chairman himself towards the end of the first day of hearing.[3]The Tribunal rejected Mr Fasipe's further allegations of racial discrimination against the Authority under another six heads, and the decision also records that an additional allegation by him (that a road traffic accident in which he had been involved had amounted to racial discrimination against him by the Authority) had not been allowed to be added as an issue by the Tribunal, and was not in the event pursued. There is no cross-appeal by Mr Fasipe against these aspects of the Tribunal's decision.[4]The second appeal before us relates to the Tribunal's later separate consideration of the remedy to be awarded to Mr Fasipe for the heads of discrimination and victimisation found proved. Their second decision on remedy followed another four days of hearings in December 1999, December 2000 and January 2001, and consideration in Chambers on 19 March 2001, by the same Tribunal. This further seventeen page decision with Extended Reasons, sent to the parties on 22 March 2001, awarded Mr Fasipe a total of £206,260 compensation. However it became apparent that there were arithmetical errors in this total and it was later substantially increased by a further decision on review sent to the parties on 22 May 2001 to a total award of £245,237.13. That included sums of over £150,000 for past and future loss of earnings and pension rights and loss of opportunity, general damages in the separate sums of £25,000 for "injury to feelings" and £40,000 for "psychiatric damage, pain and suffering and loss of amenity", with the addition of substantial interest in each case.[5]The Authority appeals against the decision on liability alleging numerous errors in relation to each of the heads of discrimination and victimisation found proved, and also against the awards of compensation, alleging material misdirections in attributing such losses to the limited number of acts of discrimination found proved, and in awarding unreasonably high amounts for general damages.[6]To understand the issues argued before us on appeal by Mr Jeans QC for the Authority and Mrs Cox QC for Mr Fasipe, it is necessary to rehearse what led up to Mr Fasipe bringing his proceedings before the Tribunal, and the circumstances facing the Tribunal when he did. A criticism we make later is that the Tribunal adopted an insufficiently analytical approach to the facts and evidence in the case, and it is noteworthy that their decision contains no chronological explanation of the facts or the history of the proceedings themselves. The following summary is accordingly extracted from the substantial body of documents with which we were helpfully provided for the purposes of the appeal. These included contemporaneous documents and correspondence before the Tribunal, witness statements given in evidence at the hearings, affidavit evidence about what happened at the tribunal itself, and experts' reports about Mr Fasipe's mental state, which as will be seen was unhappily itself a factor central to the issues both on liability and compensation. References in brackets are to the page numbering in the combined bundle, running to well over five hundred pages in all.[7]Mr Fasipe was born on 5 February 1970 and is black. He has good educational qualifications including three 'A' levels and a Class 2(2) Degree in Maths and Computer Science. (2) On 8 December 1997 he went to work at the Authority as a temporary agency worker supplied by Abbatt Recruitment Agency. He was required to work on clerical and computer input duties in the SMI Section (part of the Authority's Operations Department) to assist in the collection and preparation of data about fire incidents. These were needed for the publication of output and performance figures for the Authority, required by the Audit Commission for the year to 31 December 1997. (3) The section is a small one, all working in the same room. The head of section at all material times was a Mr Clarke, who has worked for the London Fire Brigade for over twenty five years. At the time Mr Fasipe was taken on to help in the section, it consisted of three employees under Mr Clarke:(i) Mr Jeffries, employed as a statistician at staff grade MG10, and(ii) Mr McGlennan, a (uniformed) sub-officer in the separate operational grading system, both reporting to Mr Clarke, and(iii) Mr Mangham, employed at grade MG12 which is the lowest clerical grade, reporting to Mr Jeffries. (4) The full establishment of the section included another employee at grade MG11 working as assistant statistician to Mr Jeffries, but this post was currently unfilled because the previous appointee had recently departed without completing his probationary period. The normal recruitment processes to find a replacement at that grade had not yet started and would take some months, so Mr Clarke decided to engage a temporary agency worker to assist with the immediate problem of entry and co-ordination of the data for the year end figures, leaving the question of a full replacement to carry out all the MG11 duties on one side for the time being. (5) The SMI section was one of three sections in the Operations Department. The departmental head at the time was the Principal Administrative Officer Mr Sheers, who reported directly to the Assistant Chief Fire Officer (Operations). Mr Sheers who was also assisted by a Miss Boettjer, the Senior Administration Officer and Personnel Manager, and a Finance Officer, Mr Kyriakides. (6) Recruitment and selection of permanent staff was not handled by the individual departments or sections, but separately on an Authority-wide basis. The manager responsible for this at the material time was Mr Shirley, the Selection and Assessment Manager for the Authority, reporting to the Head of Staff Selection and Development. At the clerical grades with which we are concerned, the Authority operated a "pooled recruitment" system, advertising and selecting for MG12 clerical officer posts on a collective basis with one generic job description, to create a "pool" of suitable appointees drawn on in due course by individual departments or sections as required. (7) When Mr Fasipe started work in the SMI section he was initially shown what to do by Mr Mangham, as the clerical and data entry duties needed of him were similar, and they both worked to Mr Jeffries. He occupied the vacant seat left by the MG11 employee whose probation had been unsuccessful, though he was not doing the full duties of an employee at that grade. The work he did do was satisfactory and he was kept on to assist in the section after the end of 1997, though saying he was looking to move on elsewhere to get a job in the computer industry. (8) Because of his interest in this type of work, Mr Clarke and Mr Jeffries arranged for him to start helping Mr McGlennan with the installation of software in a new batch of computers that arrived in March 1998. That also went satisfactorily. (9) Around this time however, there was one day when Mr Fasipe failed to turn up for work. In an ensuing conversation with the recruitment agency Mr Clarke was given to understand that this was because he required a pay increase, and Mr Clarke agreed to pay an extra eighty pence on the hourly rate charged for Mr Fasipe's services. Mr Fasipe returned to work normally from the following day. It is significant that there was no suggestion at this time that his absence was in any way due to the way he felt he was being treated by any of the permanent employees in the section. (10) Also at this time, the Operations Department had another temporary agency worker, Mr Marko Stojovic, working for it in another section. He was occasionally "borrowed" by the SMI section to assist with clerical duties as well. (11) On 3 April 1998, Mr Fasipe was involved in a serious car collision when he apparently pulled his car into the path of an oncoming vehicle. Although the Authority was not made aware of it at the time, it transpired afterwards from Mr Fasipe's own statements and medical evidence (and is not in dispute) that this had actually been a serious attempt at suicide showing that he was already then suffering from some form of mental disturbance (113, 363, and "summing up" document page 10). The attempt was unsuccessful: he escaped with some long term physical damage to his knees which were crushed underneath the dashboard, and he received medical attention for this. (12) In early May 1998 Mr Mangham who held the permanent MG12 clerical position in the SMI section left, and Mr Stojovic, the other agency employee, was transferred to work in the SMI section in his place until another clerical grade employee could be obtained through the pooled recruitment system. (13) About a month after that Mr Stojovic, who wished to work for the Authority on a longer term basis, asked if he could transfer from being an agency worker and become a direct employee of the Authority, albeit only on a temporary basis pending the next recruitment round for MG12 employees which was still thought to be some months away. (14) Mr Clarke and Mr Jeffries discussed this, and took advice from Mr Kyriakides on the financial implications of having to "buy out" agency workers from the recruitment agency to employ them only temporarily. The advice from Mr Kyriakides was that there was only a benefit to the Authority if the direct employment was to be for three months or more because of the penalty that would have to be paid. Both Mr Clarke and Mr Sheers gave evidence in chief that the possibility of a transfer to temporary direct employment was also considered in relation to Mr Fasipe as well as Mr Stojovic, but their understanding was that Mr Fasipe would not wish to commit himself for that long as he was actively seeking to move on to work outside the Authority in the computer industry. Nevertheless when a firm proposal was put up to Mr Sheers in about the second week of June, it was in terms of temporary employment on this basis being made available both to Mr Stojovic and to Mr Fasipe. Mr Sheers authorised offers to be made to both of them accordingly: (pages 304, 506 and 513). (15) However, by that time, dissatisfaction was being expressed by Mr Fasipe to Mr Jeffries and Mr Clarke. They initially found the nature of this unclear, but understood it to relate to financial issues. Mr Clarke proposed that he and Mr Fasipe should discuss this on Monday 15 June 1998 but it turned out that Mr Fasipe was away for the whole of that day at a job interview for another position in Birmingham. (16) On the two days following his return, 16 and 17 June 1998, two meetings took place. The first was between Mr Clarke and Mr Fasipe and the second between the two of them and Mr Jeffries. At these two meetings the discussion was on similar lines, Mr Clarke and Mr Jeffries understanding from it that what Mr Fasipe wanted was employment at the MG11 grade, even though he was not actually fulfilling the duties of that position. Their evidence was that on each occasion it was made clear to Mr Fasipe that temporary direct employment with the Authority at the MG12 grade on the same basis as Mr Stojovic was available to him if he was prepared to given the necessary commitment to stay with the Authority for the minimum period of time needed to avoid financial disadvantages to the Authority as advised by Mr Kyriakides: (pages 304 - 305, 506 - 507). (17) However, the second meeting ended without that being pursued, and with Mr Fasipe still maintaining he should be employed in the MG11 position instead: (page 507). (18) Significantly, Mr Jeffries' witness statement noted that Mr Fasipe did seem to have been having trouble in understanding what was being said to him at the meeting on 17 June (507). In fact, according to Mr Fasipe's own later statements, he was at this time in a disturbed and deluded mental state, so serious that he physically attacked another wholly innocent driver in another road traffic incident: (pages 110, 368, and summing up document page 13). (19) On 25 June 1998 a formal offer of temporary employment at grade MG12 was made to Mr Stojovic. According to the Authority's evidence no corresponding offer was made to Mr Fasipe because of what was contended to be the lack of the required assurance from him of a minimum period commitment: (page 366). (20) On the following day, 26 June 1998, the pooled recruitment vacancies for permanent MG12 positions were advertised. Mr Clarke's evidence was that he advised both Mr Fasipe and Mr Stojovic personally that the MG12 pooled recruitment process had begun and that both of them would be welcome to apply: (page 305). (21) On Monday 29 or Tuesday 30 June, there were two occasions when other employees in the section were asked by Mr Fasipe for help in carrying out operations on his computer. There is no dispute that in one, Mr McGlennan leant over the back of Mr Fasipe's chair to point out something for him on his screen; and in the other, Mr Jeffries asked him questions as a means of identifying what he needed to do next. Both incidents were the subject of complaints raised by Mr Fasipe later, but not at the time. (22) On 30 June or 1 July 1998, following these incidents, there was a further discussion between Mr Clarke, Mr Jeffries and Mr Fasipe, with Mr Fasipe appearing agitated and confused, expressing dissatisfaction on a number of topics including those already discussed at the earlier meetings. (23) The following day, 2 July 1998, Mr Fasipe arrived at work late and informed Mr Clarke that he was resigning. He then took part in a further meeting with Mr Sheers and Miss Boettjer, lasting over two hours. At a late point in that meeting Mr Fasipe raised for the first time an allegation that he had been racially discriminated against. However no further details of the allegation were given by him at that time. The meeting concluded with Mr Fasipe remaining adamant that he was going to leave, and Mr Sheers saying that arrangements would need to be made to obtain details of his allegation of racial discrimination for this to be investigated: (pages 513 - 514, 509). (24) At or around the same time, Mr Fasipe was found by his own doctor to be suffering from a mental disorder: depression, with paranoid ideas (page 171). (25) On 11 August 1998 Mr Fasipe was advised by the Selection and Assessment Department of the Authority that he had not been short-listed for the MG12 Clerical Officer post for which he had submitted an application dated 30 June 1998, as based on the information he gave in his application form:
"In the estimation of the short-listing panel you did not fully meet all the selection criteria". (see pages 345 - 350, 358). (26) The Authority's evidence (cf. pages 350D, 356 - 357) was that this decision had been taken in the normal pooled recruitment process on an assessment of the information given in Mr Fasipe's application form, by two separate managers unconnected with the SMI section. Their markings showed him as falling well short of the minimum needed for short-listing, in particular because he had failed to address two of the stipulated selection criteria at all, despite it being made clear in the instructions sent with the application forms that: "
If you do not address each and every one of the selection criteria clearly, you will not be short-listed". (27) At or about the same time a solicitor acting on behalf of Mr Fasipe submitted a race relations questionnaire dated 10 August 1998 to Mr Sheers alleging that:
"(a) On or about June 1998… you discriminated against me in that you and the management employed another in preference to myself on racial grounds … (b) On or about December 1997 to 2 July 1998 …. you discriminated against me in that you and the management behaviour was racially motivated." and following this up with numerous questions about the recruitment to both MG11 and MG12 grades including: "
Why was the complainant not short-listed for the position(s)?". (28) Also at about this time, the later medical evidence showed that Mr Fasipe had been presenting mental symptoms of acute stress and anger, aggression and "fixed ideas about his situation". He was prescribed Thioridazine, which is a "major tranquilliser" or anti-psychotic drug, and other tranquillising medication: (see page 171). (29) On 14 September 1998 Mr Sheers sent a detailed response to the race relations questionnaire answering the questions about Mr Fasipe's temporary employment and why he had not been short-listed for the MG12 position. This included the incorrect assertion that in June 1998 he had actually been given an offer of a temporary fixed term employment contract along with Mr Stojovic but had turned it down as he was actively seeking other employment: (pages 319 - 329). The response did not deal with the generalised allegations of discriminatory behaviour, pointing out that no details at all of these had been supplied despite requests: (page 320.) (30) Mr Fasipe continued in a distressed state in September 1998, now with some physical symptoms of his mental difficulties: (page 171.) (31) On 25 September 1998 Mr Fasipe's solicitor signed, and on 30 September 1998 submitted, the Originating Application in this case. This alleged that Mr Fasipe had been employed by the Authority from 8 December 1997 to 2 July 1998 and discriminated against in that:
"[1]The Applicant was unlawfully discriminated against racially by not being selected or considered for the available position as an MG11 or MG12 worker …. [2] The Respondent and/or their agent racially discriminated and abused the Applicant between the period starting sometime in December 1997 to 1 July 1998." (32) No further details of the acts relied on as discriminatory were given in the application, and it was never amended. (33) On 23 October 1998, in response to a request from the Authority for particulars, the details of the second allegation, of discrimination over a period, were said to be that Mr Clarke and Mr McGlennan had been responsible between 9 December 1997 and July 1998, in the operations department, for: "
Exchange of entry card … in a manner that suggested that contact with the Applicant is being avoided." (34) As later became apparent this was an allegation of discriminatory conduct on a daily basis by Mr Clarke, in the manner Mr Fasipe had been handed a security card to obtain access to a secure area of the Operations Department for the purpose of getting statistics: temporary employees were not given cards of their own. Furthermore, Mr Fasipe had noticed exactly the same thing on one occasion when he had asked to borrow Mr McGlennan's own pass from him. (35) Further details, and further complaints against Mr McGlennan (none of which were found proved by the Tribunal) were given in a separate particulars document from Mr Fasipe's solicitor dated 20 November 1998: (pages 91 - 92). Those further details however contained no mention of the further, and even more serious, allegation against Mr McGlennan mentioned next. (36) This further allegation, which the Tribunal eventually found proved on Mr Fasipe's sole unsupported evidence, was of a violent and racially motivated assault on Mr Fasipe on an occasion on 16 or 30 June 1998, by banging the back of his chair repeatedly (at least three or four times) in a violent and unprovoked physical attack, so that Mr Fasipe's head jolted about frenziedly with every blow: (page 103). (37) The first recorded reference to this alleged attack is in the Chairman's record of a directions hearing on 20 January 1999, at which the permitted issues for the Full Hearing of the Originating Application were defined. Mr Fasipe was by then conducting his proceedings in person, his solicitors having withdrawn. In the course of the hearing he raised an allegation of a "violent attack on 16 June or thereabouts", and it was ordered that this should only be included as an issue if full details were given by way of further and better particulars not later than 3 February 1999: (page 98). (38) Further details of this allegation were set out in a particulars document headed "violent attack/ other comments" delivered on 4 or 5 February in response to the Chairman's order at the directions hearing: (pages 101 - 104). (39) By the time these allegations were first made and sought to be introduced into the proceedings, Mr Fasipe's mental condition had worsened. There had been an unsuccessful attempt at changing his medication to fluoxetine (Prozac), and a psychiatric consultant had had to become involved. In February 1999 a further change in medication had controlled his depression better, but he was still found to be displaying "Fixed thinking and rigid opinions" (page 171). (40) On 24 February 1999 the Authority lodged its Amended Notice of Appearance in accordance with the Directions Order, together with answers to various questions raised by Mr Fasipe. In particular it resiled from the assertion previously made by Mr Sheers of an actual offer of temporary employment to Mr Fasipe in June 1998, and substituted the defence that no such offer had been made to Mr Fasipe because unlike Mr Stojovic he was not willing to give an assurance of a minimum three months period commitment, and this had been made clear to him at the time: (see pages 336, 341 - 342). (41) By this time, Mr Fasipe's mental state was displaying serious cause for concern. A lengthy and irrationally expressed document dated 4 March 1999 sent to the Tribunal and the Authority contained suggestions and threats of violence, a description of a violent attack he said he had carried out on an innocent driver under the delusion that he was one of the Authority's managers, and much other material about himself and the Authority (described at one point as "demonic") suggesting a lack of normal insight and sense of proportion. It was accompanied by a collage of bizarre images and a package said to contain bloodstained tissues, as evidence of nosebleeds for which, along with his other difficulties, Mr Fasipe blamed racist conduct by the Authority. (42) In letters dated 8 and 15 March 1999 to the Tribunal the Authority expressed concern at this turn of events, and made applications that Mr Fasipe's proceedings should be struck out as vexatious, or that the substantive hearing now fixed for 22 and 23 April 1999 under the Directions Order should be vacated pending further directions about how the situation should be handled. 43) The response to this was contained in further Directions by the acting Regional Chairman in an order dated 16 March 1999 and a letter from the Tribunal to the parties dated 18 March 1999. These ordered the preparation of documents and exchange of witness statements not later than five days before the hearing, and stipulated that no evidence in chief might be given or expanded on by a witness at the hearing itself other than that contained in a statement so exchanged, without the leave of the Tribunal. In addition, it was directed that as a prerequisite of Mr Fasipe being permitted to attend and continue with the hearing of the application he should obtain from his doctor and/or psychologist a letter confirming he was fit to attend the Tribunal and personally present his claim: (see pages 126 - 129). (44) Mr Fasipe did not comply with the Chairman's directions, but on 30 March 1999 sent the Authority a further (open) letter headed "Proposition to LFCDA". This referred to his own "mental institutionalisation" and contained bizarre and lurid suggestions of the evidence he would produce to the Tribunal if the case went ahead, valuing his claim at a total of over £9,000,000. (45) This proposal and other correspondence sent were unacceptable to the Authority. It applied again by letter dated 12 April 1999 for the Originating Application to be struck out, for failure to comply with the Interlocutory Order of 16 March 1999, scandalous conduct, and/or want of prosecution: (pages 138 - 142). (46) On the same day (12 April 1999) Mr Fasipe was assessed by the community mental health team, when he was recorded as describing increasing levels of anxiety and paranoia, seeing and hearing voices and faces, but denying any mental health difficulties prior to his employment with the Authority: (pages 363 – 363A). He was referred to the Gordon Hospital (a psychiatric hospital) and seen there by a Dr Collinson on the next day, 13 April 1999. (47) Having seen Mr Fasipe Dr Collinson wrote the same day to the Regional Secretary at the Tribunal's regional office, giving his opinion that to proceed with the case at the present time would not prove beneficial to Mr Fasipe's health, and recommending a deferment for six weeks (page 359). (48) Apparently without sight of that letter, the Regional Secretary wrote to the parties on 14 or 15 April giving the chairman's response to the renewed application to strike out the proceedings (pages 143 – 145). His decision was that despite extreme concern about the tone of the correspondence from the Applicant to the Respondent and his being under medical and psychiatric care:
"The Chairman is not at this stage and on the basis only of a written application prepared to strike out the application. If the Respondents wish to pursue that course then they should raise the matter at the start of the proceedings before a Full Tribunal." (49) The letter concluded by repeating the request for a medical opinion on the Applicant's fitness to pursue his claim, and ended by saying: "
If the Applicant's medical advisor is unable to confirm that the Applicant is fit to proceed with his claim then the hearing will be postponed to a fresh date." (50) On 16 April 1999 which was a Friday (the hearing being due to commence on the following Thursday, the 22nd), the Authority wrote to Mr Fasipe and the Tribunal office enclosing copies of its own witness statements, and saying that it was still awaiting such a statement from him. (51) No such statement was provided, since also on Friday 16 April 1999, but unknown to the Authority, Mr Fasipe was being seen at the Gordon Hospital as an acute psychiatric case, threatening suicide largely by reference to the impending Tribunal proceedings. His condition was so serious that he was thereupon compulsorily detained under Section 2 Mental Health Act 1983 (pages 171 – 172, 363 – 363A). (52) The only response the Authority received to its request was thus an e-mail from Mr Fasipe's partner Ms Henry, sent just before midnight on Sunday 18 April, headed "LFCDA - INCARCERATION", stating that Mr Fasipe had been detained in the mental ward without his consent, and accusing the Authority of being responsible: (see page 167). (53) On Monday 19 April, Dr Collinson wrote a letter addressed "To Whom It May Concern" recording that Mr Fasipe was currently detained under Section 2 of the Mental Health Act at the Gordon Hospital under the care of the consultant psychiatrist, Dr Flannigan, and stating:
"Should the Chairman of the Tribunal wish to proceed with the hearing, Mr Fasipe will attend accompanied by a nurse escort from the Gordon Hospital."
This letter (page 360) was sent to the Tribunal but not to the Authority. (54) Also on Monday 19 April, the Regional Secretary of the Tribunal wrote directly to Dr Collinson (with a copy to the Authority: pages 168-9) stating that the Chairman required from the Applicant's medical adviser or consulting psychiatrist a certificate as to whether the Applicant was fit and able to attend the Tribunal to present his case and to give evidence to support his claims against the Authority: until that certificate was received the Chairman was not able to decide whether the hearing should proceed on Thursday. (55) On 20 April 1999 Dr Collinson replied (page 361) that: "Following examination of the above gentleman, Dr Flannigan is satisfied that Mr Fasipe is fit and able to attend the Tribunal and to present his case and to give evidence to support his claim of race discrimination against the LFCDA." (56) After considering the two letters from Dr Collinson the Chairman's decision, recorded in a letter dated 20 April 1999 sent to both the parties (see page 178) was that on the basis of the consultant psychiatrist's confirmation in the terms quoted above, the hearing set to commence on 22 April should go ahead, but that the Chairman required that the Applicant should attend with a carer from the Gordon Hospital as suggested in Dr Collinson's earlier letter. (57) That arrangement, and a further suggestion apparently discussed on the telephone that three members of staff from the hospital should attend the hearing with Mr Fasipe, was subsequently modified by an arrangement that Mr Fasipe would be accompanied at the Tribunal by a delegated responsible adult, and by his care manager from the hospital: (page 362). (58) The actual letters from the hospital, and the facts that Mr Fasipe had been compulsorily detained on 16 April under the Mental Health Act and remained under such detention (as he did at all material times down to and including the second day of the hearing on 23 April 1999), were not however disclosed by the Tribunal to the Authority or its advisers.[8]Those were the circumstances in which Mr Fasipe's Originating Application came on for hearing on 22 April 1999. On that day Mr Fasipe appeared in person, duly accompanied as arranged, and the Authority appeared by counsel and their solicitor, with their witnesses. Mr Fasipe had still not provided any witness statement, and there was of course considerable apprehension as to the course the proceedings would take. However, the Authority did not then make any further application for the proceedings to be struck out or postponed; (although their counsel emphasised the difficulties they were under) nor did he or they make any objection to the unusual procedural directions the Tribunal then went on to give at the outset of the hearing, as recorded in paragraph 5 of their Extended Reasons. These were that in the circumstances the Respondent's evidence in answer to Mr Fasipe's claims should be called first, subject to their having leave to recall any witness or adduce further evidence at any stage in the proceedings; and that the individual witnesses should remain outside the Tribunal room until they gave their evidence and should thereafter leave so that the possibility of confrontation was minimised.[9]The hearing then began and as recorded by the Tribunal, following this approach the concerns about physical confrontation did not materialise, and in fact the proceedings went on calmly and courteously. Again however the fact that Mr Fasipe had been and still was compulsorily detained under Section 2 of the Mental Health Act was not mentioned or disclosed by the Tribunal to the Authority.[10]As noted above the Originating Application had never been amended, though it had been supplemented by a number of somewhat diffuse and unorthodox documents, and the Directions earlier given had not been complied with as there was still no witness statement setting out in a clear way the factual case Mr Fasipe was seeking to make. Entirely rightly therefore, the Chairman made an effort during the course of the first day of the hearing to clarify with the parties the issues they were required to address, and the Tribunal to determine.[11]Paragraph 9 of the Extended Reasons records the result of this, that on the first day of the hearing the parties agreed that the issues were those there identified, in ten numbered sub-paragraphs by reference to various instances of alleged discrimination gleaned from the material previously put forward by Mr Fasipe, with one material addition. This was that in paragraph 9(iii), in addition to the question whether the failure to shortlist Mr Fasipe for the MG12 pooled recruitment vacancy in August 1998 had been direct racial discrimination against him contrary to Section 1(1)(a) and 4 of the Act as he had alleged, the further question was introduced whether this had amounted to discrimination against him by way of victimisation contrary to Section 2. There is no dispute that this was done at the instigation of the Chairman, who had suggested it towards the end of the first day. Again no objection was made by the Authority's counsel to this issue being included in the list of matters to be considered (though it was of course disputed that there was any merit in such a claim: pages 155 – 156).[12]There appears to have been no overt consideration at that stage as to whether the Tribunal had jurisdiction to include this as a fresh head of complaint in the proceedings so long after the actual event, when it had not been the subject of complaint within the normal prescribed time. The Chairman's later comments at page 285 suggest an objection made on jurisdictional grounds at that point would have received short shrift, but in any case paragraph 12 of the Extended Reasons shows that the Tribunal in fact deferred all consideration of time limit issues until the end of the hearing, after it had heard the factual evidence.[13]During the ensuing days of the hearing, the Authority's witnesses gave their evidence and were cross-examined by Mr Fasipe. He eventually produced a witness statement in early June (pages 364 – 370) after most if not all of the Authority's evidence had been taken, and gave oral evidence on one of the later days of the hearing. In addition, he submitted further written contentions and factual allegations in a 35-page document headed "Summing Up" also dated June 1999. That document referred specifically to the fact that he had been "sectioned" under Section 2 of the Mental Health Act , and further documentary evidence of this and his medical condition were contained in the medical reports dated 2 July and 8 July 1999 (pages 171-2, 363-363A). These according to the Chairman's comments dated 9 May 2001 (page 294) were produced at or towards the end of counsel's cross-examination of Mr Fasipe when an application was made to ask Mr Fasipe questions about his health, and there can thus be no doubt that the Authority was made aware of the details of his medical problems, including the fact of his having been compulsorily detained from 16 to 23 April 1999, before the evidence in the case was concluded.[14]As noted above the Tribunal's eventual decision, sent to the parties on 24 November 1999, upheld Mr Fasipe's complaints of direct discrimination on four out of the ten grounds in issue plus the additional one of victimisation but rejected the remaining six on the facts. As is made apparent throughout the Extended Reasons, despite thus rejecting the majority of Mr Fasipe's assertions about the incidents he considered to have been discriminatory against him, the Tribunal took an adverse view in general of the Authority, and several of its witnesses. They described Mr Fasipe as having been: "Subjected to a regime of discrimination." though without identifying more specifically in relation to that finding the components of this regime, or the individuals involved in or responsible for it.[15]In relation to the offer of temporary direct appointment to Mr Stojovic but not to Mr Fasipe in June 1998, they said they found Mr Clarke and Mr Jeffries to have been evasive witnesses who failed to comply with instructions from Mr Sheers to offer such employment to Mr Fasipe, and subsequently attempted to mislead the Tribunal as well as him; a charge which they repeated against "the Respondents", though again without identifying specifically the respects in which they found this to have been done. On that basis they held there was direct discrimination.[16]The rejection of Mr Fasipe for the MG12 vacancy under the pooled recruitment system in August 1998 they held to be both a further act of direct discrimination and also victimisation. This conclusion was based in particular on the Tribunal's own view that they were not satisfied with the scores awarded on the short-listing assessment. They rejected the evidence of Mr Shirley that this had been simply the result of the system used (and of Mr Fasipe's undisputed failure to comply with the requirement that all aspects of the stated selection criteria had to be expressly addressed in the application) as "not credible or of assistance". A further major ground for their conclusion against the Authority on this complaint was the adverse inference of impropriety if not dishonesty they drew against the Authority or those conducting the case on its behalf from the fact that the two managers from other departments who had carried out the actual short-listing had not been called as witnesses at the hearing. On this the Tribunal said:
"We conclude that the Respondents had good reason for not wishing to expose those individuals to questioning "
[17]They held in addition that following the making by Mr Fasipe of allegations of racially discriminatory treatment at the meeting on 2 July, the failure to short-list him for the MG12 position had amounted to victimisation as well as direct discrimination, and concluded with the comment:
"The Applicant has suffered substantial hurt feelings which have been aggravated by the insulting manner in which the acts of discrimination, and victimisation were carried out, and the subsequent attempts by the Respondent to cover their tracks."
Again however the Extended Reasons do not spell out specifically what was meant here by the "attempts" referred to.[18]The Tribunal also found proved (apparently in their entirety) Mr Fasipe's allegations about the security card having been handed to him in a discriminatory manner since 19 December 1997. They gave as their reason that:
"We do not find that the Applicant was imagining the incident [sic] . There was no evidence that at the material time he was suffering from any mental condition. In fact he was doing complicated programming work which would have been difficult to do had he been mentally ill at the time."
[19]Finally they also found proved the allegation of a violent assault by Mr McGlennan by banging the back of Mr Fasipe's chair, saying that they did not find Mr McGlennan, who had admitted that he might have knocked the back of Mr Fasipe's headrest accidentally when helping Mr Fasipe with his computer, a "credible witness" on this point despite accepting his evidence on others.[20]Following their decision on liability it took, as noted above, very nearly a further eighteen months for the Tribunal's final decision on compensation to be reached and the correct amounts assessed. The Tribunal's main statement of reasons sent to the parties on 22 March 2001 after the further hearings on remedy records that the award of very substantial compensation by reference to Mr Fasipe's admitted complete mental breakdown and inability to work over a prolonged period depended principally on the expert evidence of Dr Isaac, a consultant psychiatrist who had been nominated by agreement as the single joint expert to assist the Tribunal and the parties on the causes and prognosis for Mr Fasipe's condition. On this there were substantial supplemental questions, both in writing and as we were informed in what amounted to cross-examination at the instance of the Authority, when it became apparent that Dr Isaac was attributing the whole of Mr Fasipe's breakdown and mental condition to the particular items of discrimination found by the Tribunal at the liability hearing, and was doing so on the basis of what he had been told by Mr Fasipe himself.[21]The Authority commissioned a separate expert report of their own from another psychiatrist, Dr Baggaley. He took a different view from Dr Isaac's diagnosis (which was of a major depressive episode coupled with chronic adjustment disorder, and features resembling the effects of post traumatic stress disorder), and preferred his own diagnosis of a paranoid psychotic disorder. However that had to remain tentative, as he had not been permitted to interview Mr Fasipe himself.[22]As recorded by the Tribunal in paragraph 9 of the Extended Reasons for their second decision on the remedy issues sent to the parties on 22 March 2001, both experts were however in agreement that whichever diagnosis was settled on, Mr Fasipe's experiences at work could not be discounted as factors either causing or contributing to his breakdown. Further, each accepted that the other's diagnosis could possibly be correct. In those circumstances the Tribunal recorded that they preferred to base themselves on Dr Isaac's diagnosis, since he had been the original independent expert nominated and had had the opportunity of examining Mr Fasipe while Dr Baggaley had not. Most importantly, on the causation issue, assuming Dr Isaac's diagnosis to be correct, the view of both experts was similar. In accordance with those views the Tribunal therefore concluded that the discrimination found by the Tribunal had been the cause of Mr Fasipe's psychiatric condition, or at least a significant contributor to it.[23]Dealing with the issue of general damages the Tribunal reminded themselves of the need to avoid any element of double recovery in what they awarded for psychiatric damage and injury to feelings. They assessed the latter at £25,000 saying that they were following the guidance of the EAT set out by His Honour Judge Clark in Tchoula v ICTS (UK) Ltd [2000] IRLR 643. As to the separate element of psychiatric damage they referred to the Judicial Studies Board guidelines for damages for personal injury, and while noting that counsel who by then had been instructed and appeared for Mr Fasipe on the remedies hearing had initially contended for an award of £25,000 to £27,500 as appropriate, concluded that the appropriate sum to award for severe psychiatric damage was the significantly higher amount of £40,000: (paragraphs 17 –22 of the Extended Reasons). As noted above, the actual figures were later reworked and resulted in the increased total award of £245,237.13, the amounts for injury to feelings and psychiatric damage remaining unchanged at £65,000 in all.[24]Against those two decisions the Authority appealed on grounds set out in two substantial Notices of Appeal, the first against the liability decision dated 23 December 1999 running to twenty six pages, and the second dated 1 May 2001 against the separate decision on compensation. Taking account of some refinement in the skeleton arguments and oral submissions of counsel for the Authority as the two appeals before us progressed, its contentions can for present purposes be grouped as follows.[25]First, the procedure adopted by the Tribunal at the hearing on 22 April 1999 and subsequently was defective, and involved one or more breaches of natural justice against the Authority. Under this head three submissions were pursued. First the Tribunal had been wrong to proceed with the hearing on liability without disclosing expressly at the outset that Mr Fasipe was subject to a Section 2 Mental Health Detention Order. That it was said had the effect of depriving the Authority of considering whether to renew its application for an adjournment on that ground, and of making submissions on the weight to be attached to any evidence or assertions that might be given by Mr Fasipe before the Tribunal if the proceedings were to go ahead. Then there was the introduction of the question of victimisation, entirely on the Chairman's own instigation, when there had never been an amendment of the proceedings to introduce such a complaint and Mr Fasipe himself had never set out a factual case for it. Finally reliance was placed on an occasion in the course of the proceedings when Mr Kyriakides had been giving his evidence and had expressed the view that having known one of the alleged discriminators, Mr Jeffries, for a long time he did not consider him a racist. At this, a member of the Tribunal, Mr Gibbes, had intervened and engaged Mr Kyriakides in a fairly robustly expressed debate on how one could know this about another person, concluding his observations with the words "I rest my case". That was said to demonstrate an appearance of bias against the Authority.[26]The second group of arguments on liability related to the way the Tribunal dealt with the four heads of direct discrimination and one of victimisation they found proved: for various detailed reasons it was contended on behalf of the Authority that their conclusions on these were flawed, because of failure to have regard to Mr Fasipe's mental state in assessing his evidence, misdirection as to the factual case that needed to be established for example in relation to victimisation or the incident involving the chair, and perversity in the actual findings made on the failure to short-list Mr Fasipe for the MG12 position and otherwise, which it was said were unjustified having regard to the actual evidence before the Tribunal and the way the case was presented to them.[27]Thirdly as to the decision on remedies, it was contended that the Tribunal had misdirected themselves and reached a perverse conclusion in preferring Dr Isaac's opinion on diagnosis and causation over that of Dr Baggaley, and that the two general figures of £40,000 and £25,000 for psychiatric illness and injury to feelings were perverse and excessive.[28]On behalf of Mr Fasipe, it was disputed that there could have been any error in law on the part of the Tribunal in the procedure adopted when the Authority appearing by counsel had in fact agreed to it. If Section 2 of the Mental Health Act had not been mentioned by name at the outset of the proceedings, that was immaterial, since the Authority plainly knew that Mr Fasipe was under psychiatric hospital care but had not pressed for any adjournment. The making of one arguably inappropriate remark by the Tribunal member (which was all finally relied on as showing "bias") could not have been said to have given rise to any real appearance of bias in its actual context, which had included an intervention by the Chairman and an apology by the member himself for the remark. The introduction of victimisation as an issue had been done clearly, on the first day of the hearing when the issues in the case were being quite correctly defined, and without objection.[29]As to the second group of complaints it was contended that the Tribunal had correctly directed themselves as to the legal principles they should be applying, had recorded findings of primary fact which justified them as a reasonable Tribunal in reaching the conclusions they had, albeit adverse to the Authority. Consequently all the Tribunal's conclusions under these heads fell within the established principle that it is for the Employment Tribunal which hears the evidence to determine the factual issues, and that on such matters of fact and degree it is not for the Appeal Tribunal to intervene and substitute its own view, or (especially in such a complicated case) pick over particular points on the facts.[30]As to the amounts awarded for compensation the Tribunal had expert evidence before them to justify their conclusions on the diagnosis and causation issues, and their reasons for preferring the evidence of Dr Isaac were clearly stated: that part of the decision could not be characterised as perverse. The awards for injury to feelings and psychiatric damage were open to the Employment Tribunal to make: the Appeal Tribunal could again only interfere if there had been some misdirection and here there was none.[31]On the procedural issues we have concluded that Mrs Cox's arguments are to be preferred and there was no error of law on the part of the Tribunal such as to invalidate their decision. The circumstances facing all involved on the morning of 22 April 1999 were of course of the most acute difficulty. Mr Fasipe himself was in distress, on heavy medication and under continuing detention because of an ongoing psychological crisis obviously having a great deal to do with the Tribunal proceedings themselves. The Authority was faced with conducting proceedings against an Applicant in person in this state, who had recently been making bizarre and diffuse suggestions including references to violence and blood, and the Authority itself as "demonic" and "satanic"; had failed to specify the factual evidence he would be putting forward defining the case they had to meet, and had repeatedly failed to comply with the Tribunal's directions and the requirements of normal procedure. The Tribunal were faced with a mentally disordered applicant in a volatile and unpredictable state, but the need to provide a means somehow of getting any genuine grounds of dispute between the parties heard and determined in as fair and normal a manner as possible, without undue delay or confrontation in the interests of bringing matters to a resolution in the interests of both of them, and avoiding undue disruption to the Tribunal's own business.[32]The decision that the best way of trying to do this in the circumstances was to start the proceedings but with the normal order of events reversed, having clarified and defined so far as possible the issues that would need to be addressed, was plainly a reasonable one within the proper discretion of the Tribunal, and the original suggestion that these had amounted to errors was rightly not proceeded with. On the points that were pursued, we have not been persuaded there was any material error in the Tribunal not having disclosed Mr Fasipe's up to date medical condition more explicitly than they did. The two material questions were whether it was safe to go ahead with the proceedings without disruption, and the weight to be accorded to any evidence Mr Fasipe might give. While it might have been preferable for the Tribunal to have disclosed, at least to counsel, the exact terms of the advice received from the Doctors at the Gordon Hospital rather than just what was quoted in the letter of 20 April 1999 at page 361, it is the fact that the Authority did have, in the material it had already received and the information that Mr Fasipe was currently in a mental hospital under psychiatric care, and being let out to attend the Tribunal hearing under hospital supervision, all that in our view was reasonably needed to enable them to decide on an application for postponement or to make submissions about the weight of evidence. In fact, at the outset of the proceedings they also had the e-mail sent on Mr Fasipe's behalf on 18 April 1999 referring to his incarceration and compulsory detention in a mental ward. And in any event, well before the time came for making submissions on the weight to be attached to the actual evidence given by Mr Fasipe, they had the explicit details of his medical treatment and condition, including the express references to compulsory detention under Section 2, in the medical reports produced at the hearing on 9 July 1999, and in what was said by Mr Fasipe himself in the "summing up" document of June 1999.[33]On the inclusion of the victimisation issue, we think there would have been good ground for the Authority objecting on the first day of hearing to its introduction without a preliminary determination of whether it was possible or proper at all for this to be introduced as a fresh complaint at that late stage. However we do not think that in the absence of any such objection it was a breach of natural justice for that to be included in the way it was in the list of points identified as needing to be dealt with in the course of the hearing. In view of what the Tribunal said in paragraph 12 of their Extended Reasons under the heading "Time Limits" it is in our view plain that by so including the possibility of a victimisation claim under Section 2 in the list of issues defined in paragraph 9 the Tribunal were not precluding any argument by the Authority that it would be outside their jurisdiction (on time grounds or otherwise) to allow such a claim, any more than argument on the merits of such a claim and whether the facts to establish it had been made out. It was a reasonable course to leave all that to be dealt with later, when it could be seen how the evidence and the presentation of the Applicant's case developed. In the difficult circumstances facing the Tribunal at the outset of the hearing, that was a reasonable course to take.[34]Finally the one remark of the Tribunal member, Mr Gibbes, about "resting his case" at the conclusion of the exchange with the witness Mr Kyriakides was not in our judgment such as to invalidate the whole proceedings by conveying to a reasonable observer that the Tribunal's mind was closed against the Authority. We share the Chairman's view in his comments on this incident (see page 285 – 288) that this kind of language, apparently derived from American TV court room dramas, is inappropriate for a person sitting in a judicial capacity in sensitive Employment Tribunal proceedings to use. However we are satisfied it was dealt with entirely appropriately when the Chairman immediately intervened to rebuke Mr Gibbes and correct any misleading impression, and Mr Gibbes immediately apologised. In the light of that we were not satisfied that any real apprehension of bias would thereafter have been left in the mind of any objective observer, and in support of that again we agree with the Chairman that it is significant that no objection was raised on behalf of the Authority to the case continuing at the time. We accordingly reject the procedural grounds of appeal advanced on behalf of the Authority.[35]However the informal and to some extent unorthodox procedure the Tribunal quite understandably adopted to get through the hearing inevitably carried its own consequences in a case of this complication, for the way the Tribunal needed to address the substantive issues. In particular, the fact that a number of the allegations depended on uncorroborated assertions by Mr Fasipe himself, coupled with the fact that he was not, in the event, required to set out the details of his case clearly in the form of a normal witness statement until after the conclusion of the Authority's evidence, made it of even more than usual importance that the Tribunal should adopt a strict and analytical, not a generalised, approach to the evidence. It further meant that they needed to be particularly cautious about accepting the potentially distorted perceptions of a mentally disordered Applicant without corroboration or thorough scrutiny.[36]Both sides emphasised that the Tribunal's findings and stated reasoning required to be read as a whole, and that it would be wrong for us to take a piecemeal approach to the findings on individual heads in isolation from others. We accept that. Applying that approach however also leads us to accept a major submission made by Mr Jeans, that the Tribunal's perceptions of Mr Fasipe's evidence about the treatment he received, and the corresponding adverse assumptions they plainly made about several of the Authority's witnesses and the probity of their evidence to the Tribunal, can fairly be seen to have fed into one another so as to have affected all the conclusions on discrimination and victimisation they reached against the Authority.[37]In particular, we accept Mr Jeans' submission that the Tribunal's approach to the evidence before them on these issues can be seen to have been flawed by a fundamental misdirection on the facts about when Mr Fasipe first became mentally ill. That was a question of major importance both in its timing in relation to the acts complained of and also at least equally importantly in relation to the time when he first raised allegations about them.

(v) of the Tribunal's Extended Reasons where they stated:

"However it is a fact that the Applicant became mentally ill after his employment ended …. We do not find that the Applicant was imagining the incident. There was no evidence that at the material time he was suffering from any mental condition."
Its significance was reinforced in the Chairman's comments of 30 May 2000 (at page 288) where he said:
"The Tribunal's finding as to the Applicant's mental state refers to the absence of medical evidence that the Applicant was mentally ill during the course of his employment…. The absence of any medical report on his condition during employment led the Tribunal to conclude that he became mentally ill after leaving employment."
[38]In fact, as will be recalled from the summary of facts and evidence given above, that was materially incorrect. The medical evidence at pages 171 – 172 and 363 – 363A, coupled with the various statements and documents from Mr Fasipe himself, showed clearly that he had been suffering from some form of mental disturbance leading to a suicide attempt as early as April 1998. Moreover by the second half of June 1998 when the main incidents of discrimination relied on are alleged to have taken place, and certainly by the start of July when allegations of racial discrimination for the first time started to be made, Mr Fasipe was suffering quite serious mental disorder and afflicted by what his own GP referred to as paranoid ideas. That paranoid ideas and "fixed thinking" were a feature of his particular disorder was beyond dispute, whether the true diagnosis of what gave rise to them was a depressive illness with complications, or a full blown psychotic condition, something on which as the later evidence showed, medical opinions might legitimately differ. That Mr Fasipe's condition remained serious, and involved irrational behaviour and distorted perceptions of how other people were thinking and acting towards him throughout the ensuing period when his detailed complaints were actually first formulated and expressed, is self evident from the material he himself produced as well as from the medical evidence before the Tribunal at the liability hearing: yet we do not find it addressed as a factor in evaluating his evidence.[39]In addition, the Tribunal's approach was in our judgment flawed by their acceptance of Mr Fasipe's uncorroborated evidence, and their rejection of that of the Authority's witnesses as untruthful in a generalised rather than an analytical way: for example in the references in paragraph 11(ii), 11(iii) and 12(a) of the Extended Reasons to: "The Respondent's subsequent attempts to mislead the Tribunal and the Applicant …. The subsequent attempts by the Respondents to cover their tracks … Mr Fasipe was subjected to a regime of discrimination." without making it clear what evidence and facts these serious findings or adverse assumptions were based on.[40]We have not been satisfied that the Tribunal's conclusions on the four separate heads of discrimination and one of victimisation they found proved against the Authority can be divorced from the generalised assumptions against the Respondents embodied in these references. For example, their apparent rejection in paragraph 11(ii) of what was on the face of it a clear and reasonable explanation in the Authority's evidence in chief for why no actual offer of temporary direct employment at grade MG12 had been made to Mr Fasipe at the end of June 1998, (because he had not asked for it and they did not understand him to be interested in giving the assurance required), appears to have been directly related to these assumptions. So does the rejection in paragraph 11(iii) of the evidence of Mr Shirley about the express requirements of the short-listing process (supported by documentary evidence) as not "credible".[41]In addition, we accept as justified certain specific contentions of the Authority about the Tribunal's findings under the various heads as follows.[42]Assuming the issue of victimisation to have been properly within the Tribunal's jurisdiction at all, the actual finding made in paragraph 11(3) of the Tribunal's Extended Reasons was not in our view one open to them on the facts there recorded as found. For a finding of discrimination by way of victimisation contrary to Section 2 Race Relations Act 1976 it is necessary first to identify the protected act relied on and then demonstrate factually that it has been the doing of that protected act that actually caused the conduct complained of. Without evidence and clear findings to demonstrate the causal link or chain between knowledge of Mr Fasipe's generalised allegations of race discrimination first made at the meeting on 2 July 1998 and the short-listing process carried out by two different managers in accordance with the system explained in the evidence of Mr Shirley, no proper conclusion of victimisation contrary to Section 2 could be drawn. The Tribunal's conclusion is defective because the factual findings to support it are not identified or stated.[43]Further, the process by which the Tribunal arrived at their conclusion on victimisation, and their separate conclusion that the failure to short-list Mr Fasipe for an MG12 post under the pooled recruitment system amounted to direct racial discrimination against him, were based largely if not entirely on adverse inferences they drew against the Authority from the fact that the two short-listers themselves were not called to give evidence in support of that given by Mr Shirley, and the suspicions embodied in their express conclusion that:
"The Respondents had good reason for not wishing to expose those individuals to questioning."
Those inferences and their consequent complete rejection of Mr Shirley's evidence were in our judgment unjustified in view of what was said in the evidence of counsel (Mr Heath) who appeared for the Authority at the liability hearing, in paragraph 19 of his affidavit of 24 January 2000 at page 160 that:
"During the hearing, rightly or wrongly, I took the view that Mr Fasipe's failure to address the two selection criteria was fatal to his complaint of discrimination and of victimisation on this point. I informed the Tribunal of this view. I further indicated that in the circumstances, I did not propose to call the two assessors, as it was not necessary to do so, and that to do so would needlessly increase costs."
That evidence is noted and referred to, but not controverted, by the Chairman in his comments dated 13 May 2000 at page 287. On such a matter the sworn and unchallenged evidence of Counsel is of course to be accepted. In view of it we have to conclude that the Tribunal acted unreasonably in drawing the adverse conclusions they did and attributing a want of probity to the Authority in not calling the two assessors as witnesses, when the actual reasons for their not being called were different and had been explicitly stated to the Tribunal by counsel in the course of the hearing.[44]In any event the Tribunal's decision to proceed to a determination on victimisation involved one or more material misdirections: this being a jurisdictional issue, it is not sufficient simply that the Respondents did not object. Insofar as the Tribunal based themselves on an assumption or direction by the Chairman that the mention of "discrimination" in the Originating Application also let in any claim of victimisation (cf. his comments at page 285 referring to Quarcopone v Sock Shop Holdings [1995] IRLR 353 ) that was incorrect: Housing Corporation v Bryant [1999] ICR 123 . To the extent that victimisation was intended to be included in the (unspecified) additional claims the Tribunal said in paragraph 12(b) of the Extended Reasons they found it just and equitable to admit out of time, they wrongly focused on the date of the Originating Application instead of when such a claim in an identifiable form was first sought to be introduced into the proceedings.[45]In addition to the Tribunal's failure to address the relevant question of Mr Fasipe's mental condition at the time his allegations about entry cards and the chair incident were first made, we accept the Authority's contention that there were further flaws in the way these issues were dealt with in their stated reasons. In particular, it was unreasonable of the Tribunal to have concluded that both Mr Clarke and Mr McGlennan had handed (or "tossed") cards to Mr Fasipe in a racially discriminatory manner (in what their reasons incorrectly refer to as a single, though unidentified, incident) when there was no clear finding that they had behaved in a different way to any other employee and nothing in the nature of the acts alleged that made them inherently racist. Moreover there was no evidence of Mr McGlennan having "tossed" a card at all, and Mr Fasipe's original allegations against Mr Clarke about the manner the cards had been handled by him had been different.[46]On the allegation of a violent physical assault by Mr McGlennan, repeated several times, we accept that it was unreasonable for the Tribunal to have rejected Mr McGlennan's evidence in chief in his written statement as untruthful, when as is clear from the Chairman's own note of the evidence dated 9 May 2001 Mr McGlennan's evidence was never challenged on this in cross-examination at all: (see page 293). In addition the Tribunal's decision on this issue in paragraph 11(ix) – incorrectly numbered (xi) – of their Extended Reasons fails to identify any proper basis for the inference that the conduct alleged, even if found proved, had been on racial grounds.[47]For those reasons we have concluded that the Tribunal's decision against the Authority on the four heads of direct discrimination and one of victimisation they found proved has to be set aside in its entirety. It is not necessary for us to deal further in this already long judgment with the additional arguments advanced on behalf of the Authority in their Notice of Appeal and subsequent submissions in relation to the decision on liability.[48]We accordingly allow the Authority's appeal against the parts of that decision that went against it, and the consequence of that has to be, as Mr Jeans conceded, that we remit those issues for rehearing and redetermination at the Employment Tribunal, which in the circumstances should be a differently constituted Tribunal from the one which gave the decisions under appeal.[49]For the avoidance of doubt the issues we are remitting for reconsideration consist only of those raised by the allegations already made by Mr Fasipe that:(1) there was direct discrimination against him on racial grounds on about 16 July 1998 or thereafter in that the Authority refused or deliberately omitted to offer him temporary direct employment at the MG12 grade on similar terms to that offered to Mr Stojovic;(2) there was direct discrimination against him on racial grounds for which the Authority was responsible, in the way Mr Fasipe was handed entry cards, on a daily basis by Mr Clarke from December 1997 and on one occasion by Mr McGlennan;(3) there was direct discrimination against him for which the Authority was responsible in that Mr McGlennan committed a violent assault on Mr Fasipe on about 30 June 1998 in the presence of Mr Clarke, by repeatedly banging the back of his chair so that his head jolted about frenziedly with every blow (see page 103);(4) there was direct discrimination against him by the Authority by refusing or deliberately omitting to offer him employment or otherwise treating him detrimentally in relation to his application for the MG12 post under the pooled recruitment system between 30 June and 11 August 1998 in that his application was rejected without short-listing; together with the additional questions of(5) whether the facts alleged down to and including the first day of the earlier Tribunal's hearing on 22 April 1999 amount to an allegation properly within the jurisdiction of the Tribunal (or properly so to be admitted) that in failing so to short-list him the Authority victimised Mr Fasipe contrary to Section 2 of the Act by reason of the complaints of racial discrimination he had first made at the meeting on 2 July 1998; and if so (but only if so)(6) whether the facts establish to the satisfaction of the Tribunal that the Authority did so victimise Mr Fasipe.[50]It will be a matter for the fresh Tribunal to determine the procedure it adopts for the rehearing: for example whether to deal with and determine issue (5) as a preliminary one in advance of the others, and/or whether to require Mr Fasipe to provide in advance of any hearing a clear statement of the factual allegations he now relies on, and/or a fresh witness statement so as to set out the whole of his factual evidence, focused on and limited to the issues for the rehearing.[51]Our decision on the liability appeal means necessarily that the earlier Tribunal's subsequent decisions on the compensation and remedy issues are set aside as well, and all such issues are remitted to the fresh Tribunal for determination so far as needed in the light of their decisions on liability. However as the issues on the second appeal were argued before us fully, we will express our conclusions on them briefly.[52]Despite the arguments addressed to us, and the detailed references made to the terms of the expert psychiatric evidence and other material at pages 387 – 501 of the appeal documents, on behalf of the Authority against the Tribunal's decision on the causation issues, we were not persuaded that there was any error of law or in principle in the Tribunal having accepted the evidence of the joint expert psychiatrist on the diagnosis and causation questions, and in having based their conclusions on that. To a lay person it may appear puzzling that the total breakdown which it is accepted Mr Fasipe suffered or was suffering, by the time his employment came to an end if not before, could all be attributed to the particular instances of discrimination found by the Tribunal, rather than to other causes or different incidents. However as Mrs Cox pointed out that was the effect of the expert evidence before the Tribunal, and they were entitled to rely on it.[53]Similarly it cannot be an error of law for the Tribunal to have based their conclusions on the diagnostic evidence of the joint expert who had actually seen the patient, rather than the differential diagnosis suggested by the other expert who had not. As recorded by the Tribunal in paragraph 8(c) of their Extended Reasons of 22 March 2001, each expert in fact agreed that the other's diagnosis was a tenable one; and in any case the precise nature of the professional diagnostic category Mr Fasipe should be placed in was secondary to the causes and consequences of his admitted disorder, on which as recorded by the Tribunal in paragraph 9 of the Extended Reasons both experts were in agreement that the Applicant's experiences at work were properly to be taken into account as factors either causing or contributing to his breakdown.[54]As regards the sums awarded for general damages for injury to feelings and psychiatric damage, we have however been persuaded by the arguments on behalf of the Authority that the figures arrived at by the Tribunal were excessive, both when in seen in isolation from one another and when viewed together. We accept the submissions made to us that the sums awarded fell outside the permissible bracket for comparable injuries as identified in the judgment of the Appeal Tribunal given by His Honour Judge Clark in Tchoula v ICTS (UK) Ltd [2000] IRLR 643 at 648, and in relation to the Judicial Studies Board guidelines for psychiatric injury to which we were referred. Consequently we would have concluded had it been necessary to do so, that the Tribunal's decision on these two amounts had to be set aside as excessive and unreasonable, independently of our decision on liability: cf. Prison Service v Johnson [1997] ICR 275, 281.[55]The Authority's appeals are thus allowed in the ways we have indicated. At the conclusion of the four days of argument these appeals occupied before us, each side made a putative application for leave to appeal to the Court of Appeal on any issue on which our decision should be against them. Having reached the conclusions expressed above, we are of the view that our decision on the liability appeal involves merely the application of well established principles of law to the particular facts and circumstances of this admittedly difficult case, and in view of our remission of both liability and compensation issues to a fresh Tribunal no separate issue of law arises on the remedies decision to warrant the attention of the Court of Appeal. Accordingly we do not grant leave to appeal.