LONDON BOROUGH OF EALING v MR M ROBINSON AND MR E COLLINS [2003] UKEAT 0412_03_2910

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0412_03_2910

Case No Appeal No. EAT/0412/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

LONDON BOROUGH OF EALINGAPPELLANT

MR M ROBINSON AND MR E COLLINSRESPONDENT

Before

Mr Justice Burton

Date 29 October 2003

[1]APPEARANCES For the Appellant MS HARJIT GREWAL (of Counsel) Instructed By: London Borough of Ealing Percival House 12-14 Uxbridge Road London W5 2HL For the Respondents MR ROBERT TRESMAN (of Counsel) Instructed By: Associate & Co Solicitors The Courtyard The Old Bank House 20 High Street Slough Berkshire SL1 1EQ THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) : This has been the hearing of an appeal by the Appellant, the London Borough of Ealing, from the Decision of an Employment Tribunal sitting at London (Central) handed down on 27 March 2003 after a hearing on 9 and 10 January 2003 that it be ordered to pay the first Applicant ("Mr Robinson") the sum of £62,118 and the second Applicant ("Mr Collins") the sum of £54,491. This had been the Remedies Hearing after a decision on liability by the same Tribunal handed down on 2 May 2002 after a hearing ("the Liability Hearing") between 12 and 20 November 2001, at which the Tribunal had made unanimous findings of unlawful race discrimination and victimisation by the Appellant.

[2]Mr Robinson, who was born in May 1954, and was thus 47 at the date of the liability hearing and Mr Collins, born in August 1957, and thus 44 at that time, were and are employed by the Respondent as maintenance surveyors in their Housing Department, Mr Robinson at the material time at Grade SO2 and Mr Collins at Grade PT: the grades immediately above them were PU, PV and then PW.

[3]The Appellants have challenged the Remedy Decision on a number of bases which in the course of argument crystallised as follows:(i) The Tribunal erred in relation to their failure to consider or apply either at all or at any rate correctly, the issue of causation. They calculated the Applicants' loss by virtue of a conclusion that they had between them an 80% chance of promotion to a PW post in November of 1999, and awarded them each 40% of the differential in salary as a continuing loss.

(ii) The Tribunal erred in its approach by awarding to each of them such continuing loss on a "lifelong" basis, i.e. up to retirement, and applying the Ogden Tables. Although Dunnachie v Kingston upon Hull City Council (No 3) (EAT 30 July 2003) had not yet been decided, the basic principles, there enunciated and emphasised, of causation and mitigation nevertheless would have applied.

(iii) There is a separate challenge to the award to each Appellant of £18,000 in respect of injury to feelings, as failing to comply with the Court of Appeal's guidelines in Vento v Chief Constable of West Yorkshire Police

[2003] ICR 318

(CA).

(iv) There was a separate and severable point made in relation to the incorrect calculation of Mr Robinson's loss, addressed in paragraph 6.1(f) of the Notice of Appeal, which Mr Tresman of Counsel, who appeared on behalf of the Applicants, accepted to be made out, such that he conceded that the figures in that regard would need to be corrected in any event.

[4]We shall deal first with the first two general grounds summarised above.

[5]The Tribunal made the following material findings at the Liability Hearing:

" 4(v) … over a period of some years, certainly between 1996 and 1999, the Applicants had an unrelieved diet of day-to-day work, while white surveyors such as Mr Buchanan and Mr Henderson did not. There was no attempt by Mr Couchman [the Head of Department, at PW grade] to move surveyors around and give them a few months in the day-to-day maintenance, followed by a few months in voids, for example … (vi) On 26 July 1999 Mr Couchman was examined by his cardiologist in relation to stress-related chest pains … Mr Couchman made a request for transfer sometime in September, which was supported by occupational health. On 5 October Mr Couchman was informed that his application for a transfer had been approved and that he was to be allocated the post of project surveyor at Perceval House. However, he did not in fact leave until 15 October, some ten days later, and he spent a week or so settling in his replacement. The Respondent considered the situation to be an emergency, and seconded an agency worker, Mr Tim [Smyth], to come in as acting area services manager in Mr Couchman's place. … (vii) On 27 September 1999, Mr Collins went off sick with neck, lower back and leg pains, and was certified unfit to attend work. However it was not until 15 October 1999 that a sick note was presented from his GP indicating that he was unfit for work until 3 November for a stress-related disorder. Mr Robinson went off sick on Monday 4 October 1999, and his sick note diagnosed depression and it indicated he should refrain from work for one week. Thus, at the time that the Respondent was considering who to appoint temporarily to replace Mr Couchman, they could not have known that Mr Robinson would be away from work for considerably more than one week, and that Mr Collins had any stress-related disorder or that he would be away from work for a protracted period. In the event, both Applicants were absent from work for many months … (viii) The vacancy left by Mr Couchman was advertised both internally and externally on or about 12 November 1999. Both Applicants were on sick leave, and were not expressly informed at this time of the vacancy. On 17 November 1999 Mr Robinson attended a meeting … to discuss his continued sickness absence. We accept [the] notes as accurate and that Mr Robinson knew that the post had been advertised but decided not to apply for it, saying that a previous attempt at promotion had been blocked and that he felt that he had no chance. Mr Collins became aware of the vacancy on 24 November, when he attended a similar meeting, but felt that the shortness of time meant that he would not be able to present an adequately prepared application by the deadline, and that anyway the Respondent's attitude gave him the distinct impression that any application from him would be considered unfavourably. The Respondent at no time made any attempt to tell these two employees, who were off sick, that the vacancy had been advertised and that the deadline for application was 26 November. They expected the Applicants to pick up this information from the trade press. In response to Mr Collins' October complaints, the Respondent merely advised that a meeting with him would be arranged on his return to work, and made no reference to the vacancy, when such might have been expected. (x) Mr Collins returned to work 20 March 2000 … Mr Robinson returned to work on 15 May … (xi) At the end of July or beginning of August, Mr Fairhurst returned from leave and decided to terminate the contract of Mr [Smyth] … (xii) Mr Robinson applied for the vacant post left by Mr [Smyth] on 22 September 2000. There was one other internal applicant for the post, Mr Steve Collins. Mr [Steve] Collins was interviewed, but the Applicant was not. Mr Fairhurst and Mr McFadden, who were on the short listing panel, decided he did not meet the criteria for short listing for interview. … Whether Mr Robinson met the criteria or not is to a large extent a subjective decision by the short-listing panel and it is difficult for us to decide whether it was a proper decision or not. However it does seem odd that only one person was interviewed out of two applicants, when in fairness to them both one would have thought that both of them could have been interviewed. In the event, Mr Steve Collins was not in fact appointed to the post and the Respondent would argue that therefore there has been no detriment to Mr Robinson. "

[6]The Tribunal reached the following relevant conclusions at the Liability Hearing:

" 9(i) Allocation of work. We conclude that there was less favourable treatment of the Applicants in respect of the allocation to them of day-to-day maintenance work only, save for a period between May and September 2000. This allocation of work was detrimental to the Applicants in terms of effect on health, job satisfaction and career progression … The explanation offered is that the system as it was, with a division of roles, worked well in 301 Housing, provided a good customer service and was also administratively convenient … (iii) … If the argument is that Mr Buchanan was experienced in the work and the others were not, then we have to question why Mr Fairhurst allowed them to go and work in voids within a few months, as he did. Effectively the Respondent accepted that the Applicants were perfectly capable of carrying out the voids work, even if Mr Buchanan had more recent experience in it. Thus we reject the Respondent's explanations here. (iv) Opportunity to act up into, and for promotion into, the post of assistant services manager (technical) in October and November 1999. The person seconded to the post and then put into it permanently was a white agency employee, and the Applicants were not seconded or promoted. The Respondent's explanation was that there was urgency to appoint someone to act up, given Mr Couchman's medical condition, that the Applicants were off sick, that the official secondment procedure would have taken too long, and it was not possible to circumvent this. However, our conclusion is that this was not an urgent matter. Mr Couchman's medical position was known from about the early to mid part of September by the head of the housing department, and the fact that Mr Couchman remained in the department until 15 October to settle the new appointee in contradicts this assertion. Further, at the time of Mr [Smyth's] temporary appointment, it was not known that the Applicants would be off on long-term sick leave, and indeed the true nature of Mr Collins' illness was also not known at that. When it suited the Respondent, the secondment procedure could be circumvented, and was so. We conclude that the Applicants should have been at least considered for the temporary appointment, ahead of, or in addition to, Mr [Smyth]. After all, there were only five surveyors in 301 Housing in total. (v) The explanation proffered by the Respondent in respect of the promotion to the substantive post was that the Applicants were told that the post had been advertised and chose not to apply. However, we conclude that the information was given to the Applicants by chance when they attended sickness-monitoring meetings, and rather late in the day, and it was unreasonable for the Respondent to expect them to look out for advertisements in the trade press. They should have been formally notified of the vacancy in good time. (vii) Mr Robinson had … complaints of victimisation … in respect of not being interviewed for the job of assistant services manager (technical) in September 2000, after Mr [Smyth] had been dismissed. We conclude that we cannot decide on the merits of the respective applications of Mr Robinson and Mr Steve Collins. However we really cannot understand why it was not possible to interview both job applicants, even if this strictly was not within the interview procedures. There were only two candidates for the post, not a large field of applicants. Further, it is, of course, Mr Robinson's case that he had never had the experience of working on voids or projects, and this may have adversely affected his written application. We think there was detriment to Mr Robinson, because he was denied the opportunity to be interviewed, and therefore possibly denied the opportunity to be offered the post. "

[7]These are findings and conclusions against which there is no appeal by the Appellant. We turn to recite the relevant findings and conclusions of the Tribunal at the Remedies Hearing, in respect of which of course there is an appeal:

" 1. …In the Tribunal's first Decision, we concluded that there was less favourable treatment of the Applicants in respect of the allocation to them of day-to-day maintenance work only, and that this allocation of work was detrimental to them in terms of the effect on their health, job satisfaction and career progression. We also concluded that the Applicants should have been considered for the acting-up into and for promotion into the assistant services manager (technical) post in October /November 1999. They should have been considered ahead of or in addition to Mr [Smyth], the agency employee who eventually got the post. We formed the view that there was unfair allocation of work over a long period of time and the repeated denial of opportunity to act up and be promoted. 2. We are now being asked to assess the Applicants' chances of promotion and if we conclude that they did have such a chance, then to determine when that promotion would have occurred. The Applicants' claims in financial terms are for loss of earnings and enhanced pension as a result of that lost chance … 3. (iii) The personal specification for area services manager (technical) in 1999 required the person appointed to the post to have a relevant professional qualification or a minimum of 5 years experience in a relevant technical field. Both Applicants had that minimum 5 years experience. Further, the post holder was required to have a minimum of 3 years managerial experience to include responsibility in effective management of budgets, varied and complex projects and planning and service delivery. On the basis of our understanding of the Applicants' experience over their working lives, we find that they did have that managerial experience. It was not suggested that they did not have the requirements under knowledge, skills and ability in that personal specification, and given their long experience in the field and their detailed knowledge of the housing area that they are in, we find they did have the requisite knowledge skills and ability. In June 2002, when a secondment opportunity arose for an area services manager (technical and resource) in Southall housing office, the personal specification had been altered to require a candidate to have a relevant qualification in housing, such as RICS or Chartered Institute of Building or equivalent. However, that was not the case in 1999 or 2000. (iv) Both Applicants from time to time made applications for jobs. Mr Robinson applied for the ASM (Technical) job at Acton [in April 1998] and was only beaten by Ms McIntosh, who undoubtedly had superior qualifications to him. Mr Robinson also applied for Mr [Smyth's] post in September 2000. Mr Collins looked for job opportunities outside the Respondent authority, and made an application for the post of project surveyor [to the Respondent in August 2000], and made some enquiries about education and training. The Applicants were criticised for not applying for voids surveyors' posts later on in 2000, and for not applying for the ASM post in June 2002. We do not think the Applicants can be criticised, given the on-going nature of these proceedings, and the fact that the application would have had to have been made to the very people who the Applicants accused of discriminating against them. (v) It is clear from the medical evidence that we have seen in respect of both Applicants, that the key reason for their absence from work from October 1999 for some months was the stress related to the circumstances in which they had to work and the discrimination that they felt they had suffered. Once the work was reorganised so that the Applicants could return to a mixed diet, including voids and day-to-day maintenance, then they were able to return to work. Further, if the Respondent had dealt with the question of who was to act up and then replace Mr Couchman on his transfer in October 1999, when the Respondent first became aware of the need to transfer him, then we conclude the Applicants would have made application for the acting-up post, as this would have occurred before the dates on which they went off sick. If they had been given proper consideration for these posts, as they should have been, and if they had been working previously to that on a proper mix of surveyors work, as we have found they should have been, then much of the stress factors in their working lives would have been removed and it is doubtful that they would have gone off sick at all. Apart from the Applicants, there was no other obvious candidate within 301 Housing for Mr Couchman's post, and Mr Buchanan did not want it. Mr [Smyth] was brought in from outside, and when the post was advertised, no-one else applied for it even though it was advertised externally. We note that when someone acts-up into a post they have an extremely good chance of later filling the post permanently. We are not surprised in the circumstances that the Applicants did not apply for the substantive post, given the fact that they had been overlooked to act-up into it, they were notified very late in the day of it, and the fact that Mr [Smyth] was already acting-up into it. (vi) The parties appear to agree that the chances of the Applicants' securing promotion in the future are very limited. Mr Whoriskey told us that there are a very limited number of ASM posts, and people tend to stay in the post until they retire or are promoted. Further, younger people are coming in with better qualifications, often to degree standard, and in today's climate the Applicants would find it very difficult to compete successfully with these people. Even if the Applicants were now to work towards relevant qualifications, they would not have obtained them until they were well into their fifties, by which time their age would be very much against them. There is a planned re-organisation, which will reduce the number of ASM posts, although we accept that there may be opportunities for other posts. (vii) The discrimination against the Applicants has continued over a number of years, but we do not find that it has been intentional and/or deliberate, but rather a sub-conscious lack of appreciation of the value of the Applicants as employees. … "

[8]The Tribunal's conclusion in respect of financial loss were as follows:

" 5 (i) Up to October 1999 we do not find that the Applicants had lost the chance of promotion and therefore higher salary. Mr Collins had not actually applied for a more senior post, and Mr Robinson would probably not have obtained the Acton post, where Ms McIntosh had been acting-up and was better qualified. However we conclude that in October 1999 the Applicants both lost the chance of acting-up into Mr Couchman's post, and then in November 1999 lost the chance of being promoted into it, by reason of the Respondent's discrimination. Given that they would have been competing against each other for that post, each individual Applicant's chance of obtaining the post was at a maximum of 50%. However, we assess each Applicant's actual chance at being 40%, given that there may have been competition for it from Mr [Smyth] or someone else. We are unable to draw a distinction between the Applicants – they both had an equal chance of obtaining the post. (ii) We do not think that the Applicants would have been further promoted, for the reasons set out in our findings of fact. Potentially, the loss of earnings claim as a result of our findings continue to the Applicants' retirement and beyond into their pension loss. However, we must take into account the possibility that the Applicants will not stay in the employment of the Respondent for one reason or another. They may resign. They may be made redundant. If they stay, they may in fact be promoted to ASM or equivalent post. All these are contingencies that we must take into account, and are very material when we are looking into the relatively distant future. The Applicant's chances of dying before they reach retirement age are of course catered for in the Ogden Tables multiplier. Given these contingencies, we conclude that it is appropriate to discount the future loss claim, in respect both of earnings and pensions, by 25%. "

[9]The Tribunal accordingly applies the Ogden Tables on the basis of loss through to retirement, arriving at an appropriate multiplier for future loss of earnings, by reference to Ogden Table 25, of 13.37 for Mr Robinson and 15.22 for Mr Collins, and adopting Table 33 of the Ogden Tables in respect of pension loss. The result, including £18,000 each for injury to feelings, is £62,118 for Mr Robinson and £54,491 for Mr Collins.

[10]The lack of proper consideration by the Employment Tribunal of the issue of causation became ever more apparent in the course of the analysis of the two decisions during the submissions of Ms Harjit Grewal for the Appellant, and in the end the submissions of Mr Tresman concentrated, while always preserving his main argument that the decision should be upheld, upon the suggestion that it should be remitted to the same Tribunal for further questions to be answered. The problem stems from the fact that the award made by the Tribunal to both Applicants was calculated by reference to the percentage chance of success in obtaining promotion to Mr Couchman's job in November 1999, respectively four and three grades higher than their existing jobs, in the following context:(i) Mr Robinson, who knew about the vacancy in time to apply for it, as the Tribunal found, did not do so. He put forward two reasons for this, as set out in paragraph 4(viii) of the Liability Decisions, set out above. The first reason, he said, for his decision not to apply for it ( not that there was no time in which he could have done so) was that " a previous attempt at promotion had been blocked ". It is not clear to what this refers. If, as Ms Grewal submits, this can only be a reference to April 1998, when Ms McIntosh was preferred, in the circumstances described by the Tribunal in the passages above, the Tribunal had found that this was a valid decision on merit and not a " blocking ". Mr Tresman however does not accept that it is a reference to April 1998: he submits that it must be a reference to the fact that Mr Robinson was not allowed to act up into Mr Couchman's position, when Mr Smyth was appointed to do so. But it is difficult to see how this can be described as a " blocking " or indeed even a " previous attempt at promotion ", when the thrust of his complaint was that he had not been considered for it or told of it and it was not in any event a promotion. The second reason was that he " felt that he had no chance ". Whether that is right or not as to his feeling, that alone would hardly justify his not having applied for a job for which on the findings of the Tribunal he had (particularly in the absence of Mr Collins) an 80% chance. The fact is that he did not apply, notwithstanding that he did know about it in good time. The fact that this was the case, in relation to Mr Robinson, appears to be lost sight of by the Tribunal when it comes to its only relevant conclusion in this regard, at paragraph 9(v), which is that " they should have been formally notified of the vacancy in good time ". Mr Collins did have less opportunity to apply and (paragraph 4(viii)) " felt that the shortness of time meant that he would not be able to present an adequately prepared application by the deadline and that anyway the Respondent's attitude gave him the distinct impression that any application from him would be considered unfavourably ".

(ii) Assuming, without deciding, that Mr Collins, if not Mr Robinson, had a good reason for not applying (and one which can found a claim for discrimination), the finding of an 80% chance of success is central. It appeared to us to be crucial in that regard that the very same job came up in September 2000, nine months later, on Mr Smyth's departure. This is of course a rare opportunity to test the percentage chances, for usually the chance of a promotion is gone, at any rate for the foreseeable future, whereas it came up again, to the very same post, and indeed after both Applicants had been back at work, and between April and September 2000 working on voids, as they had wished. If there was an 80% chance of their obtaining the job even in competition with Mr Smyth, then how much more so when Mr Smyth was no longer a competitor, and the only other applicant was Mr Steve Collins, who was clearly not considered up to scratch, as he was not even given the job when he was the only one on the short list? And yet:

a. Mr Collins did not even apply. No explanation is addressed or given by the Tribunal about this at all. It points out (paragraph 3(iv) of the Remedies Decision) that he had applied for the post of project surveyor (as to which no further reference is made, either as to its success or otherwise (it was unsuccessful)), but does not say anything at all about the fact that he did not apply for a job as to which he must have had, on the finding of the Tribunal, at least an 80% chance of success. Ms Grewal submits that he would not have got it, as he did not get the job as project surveyor. Mr Tresman takes issue with this, and refers to evidence upon which he would seek to rely to show that the reason that he did not get the job as project surveyor was his failing in technical matters, which would not have prevented, and might possibly even have enhanced, his chances in relation to the job of ASM. But none of this features in the Decision of the Employment Tribunal.

b. Mr Robinson did apply. In the context of his claim that he was victimised, by virtue of his earlier complaint, the Tribunal conclude that he suffered a detriment by reason of his not being put on the short list, and thus being deprived of a possible opportunity. The Tribunal considers (paragraph 4(xii) of the Liability Decision) that " it does seem odd that only one person was interviewed out of two [applicants] , when in fairness to them both one would have thought that both of them could have been interviewed ". But they do not find that the failure to interview, never mind the failure to offer the job, was discriminatory, or that, but for his exclusion from the short list, he would have got the job which was not in the event even offered to Steve Collins. They refer to the decision being " a subjective decision by the short listing panel … difficult for us to decide whether it was a proper decision or not " (paragraph 4(xii) of the Liability Decision) and (paragraph 9(vii) of the Liability Decision) that he was " denied the opportunity to be interviewed and therefore possibly denied the opportunity to be offered the post ". This is the job which they conclude that he had (with Mr Collins) an 80% chance of obtaining in November 1999, which he had lost for good.

[11]Mr Tresman in his skeleton and oral submissions put forward an answer. He said that the discrimination found by the Tribunal was not limited to the failure to give the Applicants an 80% chance of the job in November 1999 by virtue of depriving them of their opportunity to apply, but included the discriminatory misallocation of jobs, in particular the failure to offer work on voids, during the years before. He points to Mr Collins' evidence (not referred to by the Tribunal) in paragraph 3 of his Second Statement, in which he was putting forward his explanation as to why he did not succeed in his application for the position of project surveyor in August 2000, and indeed why he did not make an application at all for the job of ASM on Mr Smyth's departure:

" I did not apply to fill the post vacated by Mr Smyth. I had previously applied for the post of Project Surveyor in August 2000. I was not successful in my application and it was clear from the feedback that I received, and my personal assessment, that I had become seriously deskilled. In the circumstances, I felt there was little prospect of being successful in a bid for the post of ASM. "

[12]Hence, submits Mr Tresman, the loss of the 80% chance of success in obtaining the post of ASM in November 1999 was due to the " deskilling " which resulted from the discriminatory misallocation of posts by the Appellant. However, as Ms Grewal pointed out, this is just not an available argument on the Tribunal's findings:(i) As discussed above, they make no reference at all either to this evidence, or to the reasons for his unsuccessful application for project surveyor or to the reasons for his not applying for the job of ASM in September 2000, or in any event to any of this being relevant to his not applying for the job in November 1999.

(ii) Their findings are if anything inconsistent with deskilling . In paragraph 3(iii) of the Remedies Decision, which we have set out above they conclude " we find they did have the requisite knowledge, skills and ability ".

(iii) If this earlier discrimination was causative of anything, then it may have been causative of the fact that they thus did not have a good chance of promotion as they otherwise would and should have had: but that is not the same as the conclusion they reached that, had they been given the opportunity to apply (and/or to act-up in the meanwhile, assuming they had not been off sick) they had an 80% chance of success. It is in this area that if there is substance to Mr Tresman's arguments that the Tribunal had the earlier discriminatory misallocation well in mind in making its findings, that the Tribunal would in any event have erred in its approach to causation. There would need to have been a conclusion (presumably at the end of the passage in paragraph 9(i) to (iii) of the Liability Decision), as to what the effect of the discriminatory misallocation was. This might itself have had some causative effect on their lack of promotion prospects, either in leading to an understandable decision by them not to apply for promotion in those circumstances, or to the inevitability that because of their deskilling they would not have got a job which, but for the discriminatory misallocation, they might otherwise have got. Whether this argument could have run, certainly in the absence of a considerable amount of further evidence, is not for us to speculate, but it appears clear to us that it is not a task which the Tribunal began to approach. Without it, and on the assumption that the Applicants had the relevant skills (and that there was no deliberate discrimination), the absence of any conclusion as to why in those circumstances Mr Collins did not even apply for, and Mr Robinson, without any material competition, did not get, the job once it was readvertised only nine months later, is a massive lacuna or flaw in the Tribunal's decision-making process.

[13]Even without the further considerations, to which we will refer below, it appears to us that the decision of the Tribunal cannot therefore stand, and that it would be no sufficient answer, as was urged upon us in the alternative by Mr Tresman, to return to the Tribunal to ask them for the giving of some more reasons, either as to the impact of deskilling on the one hand, or on the other hand as to the impact of September 2000. It appears clear to us that another Tribunal, which will have the benefit of the findings of fact made of the first Tribunal on the liability decision, can and must now approach the question of remedy with a fresh mind, untrammelled by the previous misconceptions or misconclusions as we see them to be, of the first Tribunal. Is there any causative connection between the discriminatory misallocation of posts and what occurred in November 1999? Is there any causative connection between the fact that the Applicants were off work (but itself, on the findings of the Tribunal, in part due to stress induced by the discriminatory misallocation) and were not " at least considered for the temporary appointment " (paragraph 9(iv)) and their not obtaining the post (which in any event Mr Robinson did not obtain the following September)? Whether or not there was deskilling, is Mr Collins entitled to complain that he lost an 80% chance of the job given to Mr Smyth when he knew about it, and could have applied for it, but did not, and also did not apply in the following September, when in fact no-one was appointed (an option thus open to the Appellant), even in the absence of Mr Smyth? Similarly is Mr Robinson entitled to complain when he did not apply, but did apply and (absent further or other findings as to the events of September 2000) not only did not get the job then, but no applicant was appointed? We are afraid a much more considered approach to causation is required. Mr Tresman was driven to confess that he himself had made submissions much along the above lines before the Tribunal, but it is apparent from the decision that they did not form part of the Tribunal's rationale in the event.

[14]In the light of our conclusions above, we can deal shortly with the other, but also significant, attack upon the Tribunal's Decision. Each Applicant, having been concluded together to have lost an 80% chance of getting the promotion in November 1999 to a post three and four grades higher, was, notwithstanding the fact that the job came up again in September 2000 as we have discussed, given lifelong loss. Once again Mr Tresman is driven to confess that the reasoning of the Tribunal is not as he would have wished, and indeed not in accordance with the submissions he made. One must also note the evidence of Mr Collins himself in paragraph 10 of his fourth statement, which is more conservative:

" I consider that my chances of achieving my objectives are now very limited. I am 45 years old and am now effectively gaining experience I should have gained in my 30s. I will be over 50 years old by the time I have made up for the lost time, with a record tarnished by stress-related sick leave and a claim for racial discrimination which many employers will not find attractive. I have real doubts as to whether I will ever be allowed to achieve promotion to management at Ealing. "

[15]The Applicants were in their mid to late 40s, and the Tribunal concluded that they will never, or probably never, be promoted any further than they are: this against the background that, in the eyes of Mr Collins himself as set out above, their promotion within Ealing is not ruled out and there must also be a chance of other jobs outside the Respondent authority. The loss is simplistically put on the basis of the differential between the salary at SO2 or PT and the salary at PW, when as the Tribunal itself concludes (paragraph 3(vi) of the Remedies Decision) " we accept that there may be opportunities for other posts [than] ASM ".

[16]Particularly as we are remitting the matter to the Tribunal, we need do no other than refer to the conclusions of this Appeal Tribunal in Dunnachie No 3 that before resort is to be made to the Ogden Tables great care must be taken in making the relevant findings. If the case is not truly one of lifetime loss, then immediate resort to Ogden Tables, even with some such discount as was here made by the Tribunal, automatically magnifies, by the chosen multiplier of say 15.22, a differential which, even if appropriate at all, might only have been appropriate for a lesser time, or on the basis of a diminishing differential, by virtue of other promotions. The fundamental problem about immediate adoption of Ogden Tables is that there is a real risk that the duty of an applicant to mitigate his loss will be lost. In our judgment, in this case the Tribunal could and should have done its best to assess more thoroughly what the actual job prospects of these two Applicants, absent any continuing race discrimination, are, taking into account their duty of mitigation in the future. We think it wholly unlikely that another Tribunal would come to the conclusion that there was a lifetime loss in this case, but leave the matter to such other Tribunal for its untrammelled consideration.

[17]We turn then to the third general ground of appeal (the fourth in any event having been conceded). Given that the Remedies Decision is to be remitted to a different Tribunal, it does not seem to us appropriate for us to deal in any detail with the critique which Ms Grewal put forward of the award to these two Applicants of £18,000. On the basis of the findings of this Tribunal, we would have found persuasive the submission that it erred in law in placing the quantum, as it did, in the top band in the light of the findings of fact by this Tribunal, as compared to those cases which might otherwise be regarded as within the top band, and particularly in the light of the conclusion that this discrimination was not intentional or deliberate. At the very least Mr Tresman accepts that the decision of the Tribunal could be said to be not " Meek – compliant" (a reference to Meek v Birmingham City Council

[1987] IRLR 250

[18]In all the circumstances we are satisfied that the appeal should be allowed and the matter remitted. We have already indicated that in our judgment it would be appropriate for the Remedies Hearing to be reheard before a different Tribunal.