(1) ZAIWALLA & CO (2) MR T HODSDON v MS J WALIA [2002] UKEAT 451

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 451_00 UKEAT_2407Case No Appeal No. EAT/451/00 EAT/827/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) ZAIWALLA & CO (2) MR T HODSDONAPPELLANTMS J WALIARESPONDENT
Before
Mr Justice Maurice Kay Dr D GrievesDate 24 July 2002
[1]APPEARANCES For the Appellants MR S ZAIWALLA (Solicitor) (EAT/451/00 only) MR S LENNARD (of Counsel) (EAT/827/00 only) Zaiwalla & Co 33 Chancery Lane London WC2A 1ZZ For the Respondent MR T PITT-PAYNE (of Counsel) Instructed By: Messrs Steele & Co Solicitors 10 Park Place Lawn Lane London SW8 1UD MR JUSTICE MAURICE KAY: Ms. Jyoti Walia was awarded a law degree as a mature student and went on successfully to complete the Legal Practice Course which is the final vocational assessment for those who wish to qualify as solicitors. Her interest was in commercial law and she sought a training contract in that field. On 14 December 1998 she commenced employment with Zaiwalla & Co. as a paralegal for a short fixed term in anticipation of being appointed to a training contract with the firm. The sole principal of the firm was Mr. S. R Zaiwalla, supported by a number of salaried partners and other fee earners. The office manager was Mr. Terry Hodsdon. In the event, Ms. Walia's hopes were dashed. On 24 February 1999 her services were unceremoniously terminated. She presented a complaint of sex discrimination and breach of contract to the Employment Tribunal at London (North) and the case was heard over four days in November 1999. The Tribunal decided that:
"(1) Zaiwalla & Co. discriminated against Ms. Walia on the grounds of her sex by failing to expose her to substantial legal work, by failing to give her adequate work under supervision to appraise her suitability for a training contract, by failing to have an Equal Opportunities Policy in place and failing to take reasonable steps to enforce such a policy, by failing to prevent Mr. Hodsdon from bullying and intimidating her, by failing to take reasonable steps to prevent male employees from treating her in a demeaning and discriminating manner, by failing to carry out a proper or adequate appraisal of her suitability for a training contract and in its notification to her that she would not be offered a training contract. (2) Mr. Hodsdon discriminated against and sexually harassed Ms. Walia by consistently treating her differently from her male comparator, Mr. D. White, and by subjecting her to intimidatory, hectoring and bullying behaviour with the intention of making her feel vulnerable and nervous and to undermine her. He also discriminated against her on the grounds of her sex in his part in the decision to refuse her a training contract. Zaiwalla & Co. was vicariously liable for Hodsdon's actions. (3) Allegations of sex discrimination of Ms. Walia by another person in the firm were dismissed. (4) There were implied terms in Ms. Walia's contract of employment to the effect that a proper, adequate and fair method of appraisal would be applied to decide whether or not to offer her a training contract and further that she would be given substantial legal work to carry out. Zaiwalla & Co. were in breach of contract in that no proper, adequate or fair method of appraisal was applied to decide whether or not to offer her a training contract."
The case was the adjourned for a remedies hearing which took place on 28 April 2000. On that occasion, in addition to making various recommendations pursuant to section 65 of the Sex Discrimination Act 1975 , the Tribunal ordered Zaiwalla & Co. to pay Ms. Walia a total of £43,149.13 in respect of loss of future earnings, injury to feelings, aggravated damages and interest. In addition, Mr. Hodsdon was ordered to pay her £500 in respect of injury to feelings. A costs order was also made against Zaiwalla & Co. in the sum of £500.[2]There is now before us an appeal by Zaiwalla & Co. in relation to both the merits decision and the remedies decision. Somewhat unusually, Zaiwalla & Co. were represented by Mr. Zaiwalla himself on the merits appeal but by counsel, Mr. Lennard, on the quantum appeal. Mr. Zaiwalla also informed us that he was representing Mr. Hodsdon on the appeal but, no separate submissions having been made in relation to Mr. Hodsdon, his appeal stands or falls with that of the firm. At the commencement of the appeal, Mr. Zaiwalla applied for an adjournment, the application being based mainly on the late withdrawal or unavoidability of leading counsel who had been advising Mr. Zaiwalla on the appeal and who had settled the Notice of Appeal and appeared on the Preliminary Hearing. For reasons which we gave at the time, we refused the application for adjournment. A. The merits or liability appeal[3]Mr. Zaiwalla makes a number of broad-ranging submissions on the merits which we shall deal with under separate headings before concluding with an overview of the Employment Tribunal decision on liability. (1) Fair trial[4]It is Mr. Zaiwalla's submission that his firm and Mr. Hodsdon were denied a fair hearing. He relies on Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms, which provides for the entitlement to a "fair…..impartial tribunal". At first he sought to expand the law by reference to the decision of the European Court of Human Rights in Hauschildt v. Denmark (1989) 12 EHRR 266 but he now concedes that, for our purposes, the recent decision of the House of Lords in Porter v. Magill [2001] UKHL 67 , which expressly considered Hauschildt , is authoritative. Lord Hope of Craighead said (at para. 102):
"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
What, then are the circumstances referred to by Mr. Zaiwalla in the present case? First , he complains that, on the second day of the hearing, he (for it was he who was representing the firm and Mr. Hodsdon) was unfairly refused permission to introduce some further documents. At that point, Ms. Walia had completed her evidence in chief but had not been fully cross-examined. The Tribunal took the view that there had been specific pre-trial directions dealing with, amongst other things, bundles of documents and, in the exercise of its discretion, it ruled that the introduction of another bundle at that stage was inappropriate. Mr. Zaiwalla submits that the need for the documents arose or was increased as a result of things which Ms. Walia had said in chief. However, we understand that the documents in question related to the comparator, Mr. White. The importance of Mr. White as comparator was obvious from the Originating Application. We can well understand why the Tribunal was concerned to restrain an expansion of the documentation on the second day in those circumstances. In our judgment, it cannot now be said that there was any legal error in its ruling on this point. Secondly , there is a complaint that the Tribunal Chairman repeatedly interrupted the cross-examination of Ms. Walia and unfairly imposed a time limit for the completion of the cross examination. It seems that after almost two hours of cross examination, a limit of a further 45 minutes was imposed. The fact that this was less than the examination-in-chief seems to us to be without significance. The Tribunal was in the best position to judge how appropriately or otherwise the time was being used. It was necessary to keep an eye on the clock. In the event, the evidence was only just completed in the four days that had been set aside for the hearing. We cannot say that the imposition of a time limit of a further 45 minutes was or would have appeared unfair. Moreover, the alleged interruptions seem to us to have been unobjectionable. Mr. Zaiwalla claims to have been "distracted" by them and it seems that he made this complaint after the fourteenth of fifteen interruptions, but when we asked him what lines of questioning he had been prevented from pursuing, he could give no significant example. We do not consider that there is anything in this complaint. A Chairman is not required to remain mute during a long cross-examination. If this Chairman intervened 14 or 15 times in almost three hours, that does not seem to us to raise, without more, any grounds for complaint. There is no material before us to suggest that he was doing anything more than managing the proceedings.[5]Thirdly , it is suggested that one of the lay members of the Tribunal exhibited a hostile and biased attitude when pursuing a line of questioning. When Mr. Zaiwalla complained, the Chairman stated that the line of questioning was perfectly proper and that he would only curtail it if he considered that there was reason to suppose that the lay member had pre-judged the case. That much is apparent from the extended reasons, which expressly address this point. There is no other material before us relating to this complaint. It would be wholly inappropriate for us to seek to go behind what is stated in the extended reasons. The complaint is unsustainable[6]Fourthly , Mr. Zaiwalla complains that there was a delay between the conclusion of the evidence on 19 November 1999 and the promulgation of the Decision on 23 February 2000 – a period of just over three months (although the Tribunal had met to consider the matter in Chambers on 1 December 1999). We do not doubt that there are cases in which substantial delay can undermine the decision-making process, although the authority relied upon by Mr. Zaiwalla ( Nash v. Chelsea College of Art and Design Stanley Burnton J, 11 July 2001) is not concerned with Employment Tribunals, and is not directly to the point. We cannot see any basis in the present case for concluding that delay vitiated the reasoning and the decision-making process.[7]Fifthly , (although this is a point which is made also in relation to the finding of sex discrimination, to which we shall return) it is submitted that we should infer bias on the part of the Employment Tribunal from the fact that it did not make any or sufficient reference to damaging admissions made by Ms. Walia in cross-examination to the effect that(1) the diary which she produced was not a contemporaneous document but had been compiled after the event at the suggestion of her solicitor;(2) contrary to what had been said earlier, she did not have tape recordings of such relevant conversations; and(3) an incident involving a male member of staff at a Christmas party was of no significance. All these matters were before the Tribunal and it was for the Tribunal to assess them. In fact, the non-existence of tape recordings was conceded by Ms. Walia's solicitors in correspondence prior to the hearing and the incident at the Christmas party was addressed by the Tribunal in its extended reasons in terms favourable to Zaiwalla & Co. In our judgment, there is no basis for us to infer bias from the way in which these matters were or were not treated by the Tribunal.[8]Sixthly , Mr. Zaiwalla repeatedly refers to an aspect of the case which was decided against him by our colleagues at the Preliminary Hearing. Immediately before and soon after her time at Zaiwalla & Co, Ms. Walia worked in the Lord Chancellor's Department, where she came into contact with Mr. Keith Vaz MP, who was then a junior minister in the Department, and Mr. Garry Hart, the Lord Chancellor's expert advisor. This was the foundation of grounds of appeal to the effect that the Employment Tribunal was not independent with the meaning of Article 6 of the ECHR, as its members are appointees of the Lord Chancellor. This wholly unmeritorious ground of appeal was stopped in its tracks at the Preliminary Hearing and, in our view, rightly so. This did not inhibit Mr. Zaiwalla from attempting to reintroduce it by a variety of reformulations at the hearing before us. He seems to us to have an almost paranoid obsession about this matter and it has given rise to a spurious conspiracy theory. We were entirely satisfied that there is nothing in his complaints. Indeed, Mr. Pitt-Payne referred us to some documents which demonstrate the unreality which pervades Mr. Zaiwalla's approach to this aspect of the case. We do not find it necessary to say anymore about it.[9]In our judgment, it is abundantly clear that, considered separately and cumulatively, there is no merit in the appeal on the basis of an unfair trial. However, before we leave it, there is a procedural aspect of that part of the case which we ought to mention. At no stage has the Chairman of the Employment Tribunal been invited to comment on the allegations of unfairness. Mr. Zaiwalla correctly observes that the Practice Direction places the initial responsibility for requiring Affidavit evidence and inviting the Chairman's comments on the Registrar of the Employment Appeal Tribunal rather than on an appellant. However, if the Registrar does not of her own motion initiate that process, an appellant who wishes to pursue such allegations should raise the matter with the Registrar and, if necessary, with the Employment Appeal Tribunal at the Preliminary hearing. In the present case no injustice has been occasioned by the omission to do so because we have found these grounds of appeal to be without merit in any event. However, in a more meritorious case, or one that is arguably so, it would be invidious if the Employment Appeal Tribunal were to have to choose between not allowing the point to be argued, allowing it to be argued without the appropriate material or adjourning the case at that late stage for the procurement of that material. Ultimately, it is for appellants to ensure that the Employment Appeal Tribunal is equipped with the material necessary for the disposal of their appeals. (2) The finding of sex discrimination[10]Essentially, this is a ground of appeal alleging perversity in the finding of sex discrimination. Mr. Zaiwalla complains about the weight or lack of weight accorded by the Employment Tribunal to aspects of the evidence, for example (but not limited to) the points he made about Ms. Walia's credibility in relation to the diary, the absence of tape recordings and the small number of staff at the Christmas party. He professes astonishment that the Tribunal should have made findings in her favour and adverse to witnesses who are solicitors or senior employees of a firm of solicitors. He complains that the tribunal found sex discrimination rather than possible alternatives such as non-discriminatory unreasonableness or (bizarrely) race discrimination, which was not alleged by Ms. Walia. He insists that his firm was a small niche practice doing its level best in difficult circumstances and that, whilst there may have been personality clashes involving, particularly, Mr. Hodsdon, it was quite wrong for the Tribunal to find sex discrimination. It was a system that worked "in its own peculiar way". He referred us to the witness statements of the firm's witnesses. He suggested that the Tribunal had misconstrued the respective positions of Ms. Walia and Mr. White and the requirements and expectations of the firm. His peroration was "I had a very bad hearing before the Employment Tribunal. I am here for justice."[11]By coincidence, on the very day when Mr. Zaiwalla was making these impassioned, yet courteous submissions, there was reported in The Times the decision of the Court of Appeal in Yeboah v. Crofton (CA, 31 May 2002, The Times 20 June 2002), in which Mummery LJ took the opportunity to restate, in more trenchant terms, the correct approach for the employment Appeal Tribunal to take when perversity is alleged. An appeal on perversity should succeed "only if an overwhelming case was made out that the Employment Tribunal had reached a decision which no reasonable Tribunal on a proper appreciation of the evidence and law would have reached. Even if the Appeal Tribunal had grave doubts about the decision, it had to proceed with great care and resist attempts by the parties to present appeals on facts as raising questions of law."[12]We are entirely satisfied that the appeal on the grounds of perversity in the present case comes nowhere near surmounting that high hurdle. It follows from all that we have said about the merits or liability appeal that we are unpersuaded by the grounds of appeal that the appeal must be dismissed. B. Quantum[13]The outcome of the remedies hearing on 28 April 2000 was that, in addition to making certain recommendations pursuant to section 65 of the Sex Discrimination Act 1975, Zaiwalla & Co. were ordered to pay Ms. Walia a total of £43,149. 13. The component parts of this were(1) loss of earnings, £18,696. 25;(2) injury to feelings, £15,000;(3) aggravated damages, £7,500; and(4) interest £1952. 88. In this appeal, the Appellant raises issues in relation to all four headings, but we shall deal with interest solely by reference to the aggravated damages award. (1) Loss of earnings[14]The central part of the reasoning of the Employment Tribunal on loss of earnings is contained in this passage: "…..it may be that the Applicant does not obtain a training contract until December 2000 in which case her career will have been delayed 2 years. It is possible that she will obtain a training contract in June. We prefer to believe that, on the balance of probabilities, it is likely that she will obtain a training contract in June 2000 and accordingly her loss in respect of the delay in obtaining a position as an assistant solicitor will be some 18 months. We also considered the Respondent's submission that the Applicant was unlikely to obtain work in Central London even had she qualified as a result of a training contract with the First Respondent. We did not accept that contention and noted that the Applicant had selected a figure which was the bottom of the band of salaries for newly qualified solicitors and also note that there is inevitably significant delay in the preparation of surveys of this type. Accordingly it was our view that the appropriate figure to use was £30,000 gross, or £22,500 net per annum and that the Applicant has to put against that earnings of £6,000 per annum in her present employment or training contract if one is achieved. That results in a net loss of £16,500 per annum which for a period of 18 months is £24,750. We considered that having made those various assumptions that the Applicant would not have succeeded in obtaining a training contract and would not have earned at a level of £30,000 immediately on qualification with Zaiwalla & Co. Accordingly we consider it appropriate to reduce that loss by a figure of 25% to take account of the possibility that the Applicant might not have achieved those earnings. The appropriate level of loss is therefore £18,562. 60." (To this figure there was added an uncontroversial sum of £133.65 for the preceding period). On behalf of Zaiwalla & Co. Mr. Lennard makes the following criticisms of this approach.[15]First , he submits that the Employment Tribunal erred when it quantified the delay in obtaining a position as an assistant solicitor as being "some 18 months" and that the correct figure is 16 months. Clearly, the Employment Tribunal was taking a broad approach on this issue. On one assumption, if Ms. Walia had remained at Zaiwalla & Co., she would have made the transition from paralegal to trainee solicitor in February 1999 and would have been qualified in February 2001. On the other hand, as Mr. Pitt-Payne points out, Mr. White had his training contract backdated so as to embrace part of his paralegal period – a period equivalent in time to the whole of Ms. Walia's paralegal period – and if that had happened to Ms. Walia, she would have qualified two months earlier and the calculation based on 18 months' loss would be logical as well as within the broad approach adopted by the Tribunal. In our judgment, there is force in this submission. We do not consider that the Tribunal was engaged in a precise calculation which required limitation to 16 months. Nor do we consider that there is an error of law in this part of the Tribunal's approach. Secondly , Mr. Lennard takes issue with the 25% discount, contending that in a highly competitive market, as evidenced by Ms. Walia's own difficulties in finding an alternative training contract, the discount should have been at least twice as much. This was pre-eminently a matter for the Tribunal. Nothing we have heard or read by way of submission disposes us to the view that 25% did not accord with the evidence or was otherwise afflicted by legal error. (2) Injury to feelings .[16]The approach of the Employment Tribunal to this aspect of the compensation was conditioned by the decision of the Employment Appeal Tribunal in Armitage and others v. Johnson [1997] IRLR 162, in which Smith J. set out the relevant principles for assessing awards for injury to feelings for unlawful discrimination. The principles are (para. 27):
"(1) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation should not be allowed to inflate the award. (2) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could….be seen as the way to untaxed riches. (3) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award; rather to the whole range of such awards. (4) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind…. (5) Finally, tribunals should bear in mind….the need for public respect for the level of awards made."
[17]The judgment also referred to the brackets for cases of post-traumatic stress disorder recommended by the Judicial Studies Board in relation to personal injury claims. At that time these were £25,000 to £35,000 for the most severe cases; £10,000 to £20,000 for moderately severe cases; and £3,000 to £7,500 for moderate cases.[18]In the present case the Employment Tribunal expressed its conclusions on aggravated damages in this way. "…..the Tribunal did not consider there was any basis upon which it could be said that this was a moderate situation. This Applicant was a bright and enthusiastic mature student about to embark on a professional career in the law after a lengthy period of preparatory academic study who faced, contrary to what she had expected, prejudice against her as a woman and appalling petty conduct which resulted in extreme unhappiness on her part. She was treated worse than an office junior would have been….The Tribunal had no hesitation in placing this as a moderately severe case and in that context considered it lies well in the middle of that band of case. Accordingly, the appropriate level of award in respect of injury to feelings in this case was £15,000. The Tribunal had no difficulty in reaching that conclusion. This was not a case where the Applicant had over emphasised any of the consequences of the Respondent's discriminating actions upon her. In fact the Tribunal was left with the impression that, through natural modesty, the Applicant had to some extent underestimated the serious effect which her short period of time at Zaiwalla & Co. had on her personal self esteem and career development as a lawyer".[19]Mr. Lennard submits that to award £15,000 for injury to feelings in this case was plainly wrong. He points to the fact that the period of employment was relatively short and that it is not a case of long-term disability. The "moderately severe" category of PTSD in the JSB guidelines is defined by reference to a prognosis of "some recovery with professional help. However, the effects are still likely to cause significant disability for the foreseeable future. Below that category, the JSB refers to "moderate" cases in which the injured person "will have largely recovered and any continuing effects will not be grossly disabling"; and to "minor" cases in which "a virtually full recovery will have been made within one to two years and only minor symptoms will persist over a longer period". Mr. Lennard's submission is that the present case is much closer to the JSB's "minor" category than to the "moderately severe" category in which the Tribunal placed it. On the other hand, he is constrained to concede that by the time of the Tribunal Decision the JSB bracket for "moderately severe" had been increased to £13,500 to £27,000; "moderate" to £4,000 to £10,000; and "minor" to £2,000 to £4,000. The brackets referred to by the Tribunal come from earlier JSB guidelines as set out in the judgment in Armitage ,[20]Mr. Pitt-Payne's primary submission in answer to all this is that it overemphasises the personal injury comparison, in that all Armitage requires in that regard is "some broad similarity to the range of awards in personal injury cases", not "by reference to any particular type of personal injury award" but rather to "the whole range of such awards". He also relies on the facts found in "extreme unhappiness" being a brief way of giving expression to understated evidence of growing despair, panic attacks and prolonged tearfulness.[21]In our judgment, there is something to be said for the submissions of both counsel on the issue of injury to feelings. It seems to us that the Tribunal probably fell into error when equating the injury to feelings with the symptoms of mid-range, moderately severe PTSD. We agree with Mr. Lennard about that. On the other hand, we accept Mr. Pitt-Payne's submission as to the relevance of personal injury awards and with his interpretation of the facts found by the Tribunal. We take the view that the correct approach for us to take is to ask ourselves whether the award of £15,000 is plainly wrong – or outside the permissible bracket – having regard to all the principles expanded in Armitage and what we know of awards in other discrimination cases. We do not make light of the injury to Ms. Walia's feelings. We of course accept the Tribunal's descriptions. However, we have come to the conclusion that to quantify this head of compensation at £15,000 was plainly wrong and arose from an inappropriate categorisation which was overemphasised as a criterion in any event. In our judgment, an appropriate figure is £10,000. In allowing this part of the appeal we shall substitute that figure as we feel sufficiently informed to avoid the remission of the matter to the Employment Tribunal. (3) Aggravated Damages[22]The Employment Tribunal reasoned the award of £7,500 as aggravated damages in these terms:
"This Applicant not only suffered the treatment complained of but also was treated in this way in a legal practice where we would have expected standards to apply which had some regard to equal opportunities. The Applicant was treated badly and her complaint resulted in a minimal letter in response from Mr. Zaiwalla. The Applicant was told on termination of employment that she would be supplied with no reasons for the failure to gain a training contract. She was then given a letter belittling her abilities. When she took Tribunal proceedings a monumental amount of effort was put into defending those proceedings. That exercise was of the most inappropriate kind, attacking the Applicant in relation to her personal standards of professional conduct and holding a series of threats over her head which would be daunting to any individual let alone to someone about to embark on a legal career having difficulty obtaining a training contract. The defence of these proceedings was deliberately designed by the Respondents to be intimidatory and cause the maximum unease and distress to the Applicant. There is no other way of describing it."
[23]Mr. Lennard seeks to raise an important point of principle in relation to this reasoning. He submits that the award of aggravated damages was based to a large extent on the way in which Zaiwalla & Co defended the proceedings in the Employment Tribunal and that, he contends, is not something which can be used as a basis for aggravated damages. There is no doubt that aggravated damages can be a legitimate head of compensation in a discrimination case: see Armitage (above) at para. 40. The general principle was there taken from the well-known speech of Lord Devlin in Rookes v. Bernard [1964] AC 1129 , 1227, HL. In Chief Constable of West Yorkshire Police v. Vento (No.2) [2002] IRLR 177 , the Employment Appeal Tribunal heard rival submissions on the very point which is now in issue before us – conduct in the defence of the proceedings – but it is clear that the appeal was disposed of without that issue being resolved. Mr. Lennard submits that to award aggravated damages by reference to conduct in the defence of the proceedings would be an unwarranted extension and that there are better way of dealing with the problem – for example by an order for costs under regulation 12 to reflect unreasonableness in the conduct of the proceedings. Indeed, an award of £500 was made in the present case pursuant to that power, albeit by reference to unreasonable inefficiencies rather than anything malicious. The problem with that approach is that it is limited to a reflection of costs unreasonably incurred and is unrelated to the victim's "proper feelings of dignity or pride", to use the words of Lord Devlin.[24]In our judgment, there is no reason in law why aggravated damages should not be awarded by reference to conduct in the defence of proceedings in a discrimination case such as the present case, which is very different from the context of non-intentional torts as exemplified in AB v. South West Water Services Ltd. [1993] QB 507. Indeed, there is a very good policy reason for allowing such a claim in an appropriate discrimination case. If a respondent misconducts himself in the defence of a discrimination case, it may amount to victimisation of the applicant in respect of the protected act of bringing the claim. It is easy to imagine cases in which the misconduct amounting to victimisation might only arise at a late stage of the proceedings, perhaps only during the hearing. It seems to us that it would be regrettable if such victimisation could only be compensated by the commencement of further proceedings. In the field of discrimination law there are already too many cases that give rise to multiple proceedings and satellite litigation. In the sort of case which we are considering here, it is preferable that, where there is misconduct of sufficient gravity, it is compensated by the Tribunal which is seised of the matter and which has the feel for the aggravating material and its effect on the victim. In the present case, we are satisfied that the approach of the Tribunal to aggravated damages was entirely appropriate and free from legal error.[25]The quantification of the compensation for aggravated damages was first and foremost a matter for the Tribunal, which was bound to have regard to the principle of just and equitable compensation, the relationship to injury to feelings and the global size of the award. Mr. Lennard submits that, if aggravated damages are available for this aspect of the case (as we have held), the award of £7,500 was too high in any event. However, he has failed to satisfy us that it is plainly wrong. In our judgment, it was consistent with the Armitage and Vento (No. 2) cases. We observe that the award of aggravated damages were not limited to misconduct in the defence of the proceedings but included a reflection of the manner of the discrimination which gave rise to the proceedings. We do not find the figure of £7,500 to be appealable.[26]However, Mr. Lennard does have what seems to us to be a correct argument in relation to interest on the £7,500 from 23 February 1999, whereas the misconduct in the defence of the proceedings only arose later and piecemeal. It was therefore erroneous to award interest on the £7,500 for the whole period. That argument is, in our judgment, correct in principle. On the other hand, a part of the £7,500 related to the original manner of the discrimination – probably rather more than Mr. Lennard implied, although we accept that most of it related to misconduct in the defence of the proceedings. At the date of the award, the interest on the £22,500 (viz. the then award of £15,000 for injury to feelings plus the £7,500 for aggravated damages) came to £1,952.88. We do not propose to remit to the Tribunal for a recalculation. It seems to us that the sensible and proportionate approach is for us to reduce that figure, taking a broad brush approach which takes account of the £5,000 reduction in the award for injury to feelings and the fact that a significant part of the aggravated damages reflected events subsequent to February 1999. Doing the best we can, we shall fix the figure for interest as at 28 April 2000 (the date of the remedies hearing) at £1,450. Conclusion of quantum[27]We can therefore summarise our conclusions on quantum in this way. We have allowed the appeal in part. The effect is to reduce the principal award by £5,000 and the interest by £502.80 a total reduction of £5502.80. Subtracting this from the Employment Tribunal's "grand total" of £43,149.13 produces a revised figure of £37,646 as at 28 April 2000. A word of warning[28]We are sensitive to the possibility that overenthusiastic litigants and litigants in Employment Tribunals may be tempted to read our conclusions in a way which would give the green light to claims for aggravated damages in respect of alleged misconduct in the defence of proceedings almost as a matter of routine. They would be wrong to do so. The findings of fact in the present case (which were not challenged in the quantum appeal) were exceptional in their assessment of the litigation misconduct. We expect that cases attracting awards of aggravated damages for such behaviour will be few and far between. It saddens us that this exceptional case concerned the behaviour of a firm of solicitors.

Cited in 1 later judgment