BIRMINGHAM CITY COUNCIL v DESMOND JADDOO [2004] UKEAT 0448_04_2810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0448_04_2810Case No Appeal No. UKEAT/0448/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BIRMINGHAM CITY COUNCILAPPELLANTDESMOND JADDOORESPONDENT
Before
Mr Justice BurtonDate 28 October 2004
[1]APPEARANCES For the Appellant MR EDMUND BEEVER (Of Counsel) Instructed by: Solicitor to the Council Ingleby House 11-14 Cannon Street Birmingham B2 5EN For the Respondent MS HARJIT GREWAL (Of Counsel) Instructed by: Messrs Bailey Wright & Co 3rd Floor Guildhall Buildings Navigation Street Birmingham B2 4BT SUMMARY Appeal by the Respondent Council against Remedies Decision awarding £118,000 net to the Applicant in respect of lifelong loss (as discounted by reference to Ogden Tables), said to arise out of a period of discrimination found against the Respondent at the Liability Hearing; further information had arisen at the Remedies Hearing not known at the Liability Hearing: no adequate consideration by the Tribunal of whether there was any, and if so what, future loss (considered in the context of Dunnachie No 3 which was not cited at the Tribunal) or of causation of past or future loss and causation and quantum of compensation for injured feelings and/or psychiatric injury ( Gardiner Hill v Rowland Berger Technics Ltd , Vento and Salmon considered). Remitted to same Tribunal but with substantial caveats ( Sinclair Roche considered). THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been an appeal by the Respondent, Birmingham City Council ("the Appellant"), against the unanimous decision of the Birmingham Employment Tribunal at a Remedies Hearing which lasted eight days, between May 2003 and March 2004, contained in Extended Reasons sent to the parties on 7 April 2004. The same Tribunal had unanimously made findings of race and disability discrimination in favour of the Applicant, Mr Jaddoo, after a hearing of nine days in October 2000 and June 2001. It is unclear to us why there was such a delay between the Liability and Remedies Hearings, but the result is that we are now hearing an appeal in respect of awards which seek to compensate the Applicant for events between 1997 and 1999/2000. The Applicant last worked for the Appellant Council in January 1998 and his employment terminated in October 2000.[2]The Applicant, who was 31 when he last worked for the Appellant, was employed by the Appellant's Housing Department since 1983. He is a Jamaican Indian. According to an agreed medical summary, he suffered from stress and anxiety at the end of 1995, and panic attacks began in November 1996 in the context of disputes with his ex-partner, which, the doctors agreed, appeared " to be a causal relationship in the context of pre-existing vulnerabilities ". His diagnosis was of panic disorder with anxiety and depression. The Tribunal found that this condition, and a recurrence of it, caused him to be off work from November 1996 to January 1997 and again in February 1997. The doctors agreed that two racial attacks, to which we will refer, in September and November 1997, aggravated his pre-existing condition to a significant degree, and the Tribunal concluded (at paragraph 159 of its Liability Decision), that from 15 January 1998 the Applicant was a disabled person suffering from a disability as referred to in s1 of the Disability Discrimination Act 1995.[3]Before analysing the compensation which was awarded, and the appeal against it by the Appellant Council, the precise discrimination found by the Tribunal must be set out. Since the Tribunal at the Remedies Hearing was the same Tribunal as had made the findings of fact in relation to liability, it would not normally be so necessary to recite such facts at the outset of a Remedies Decision, but it is clear to us that, in the light of the time that had passed, and the length of both hearings, it would have considerably assisted if the Tribunal had done so, as we now do.[4]There were four findings of discrimination, two of race discrimination and two of disability discrimination: 4.1 The Applicant was the subject of a racial attack in September 1997, as we have mentioned, for which the Respondents were not suggested to be liable. This is described in paragraph 19 of the Liability Decision:
" On 8 September 1997, when the applicant went on a visit on the estate, 15 or so youths surrounded his car. They shook the applicant's car and shouted racial abuse at the applicant. They tried to rob him. A youth opened the applicant's car door. As he did so the applicant hit him. The youths ran off and the applicant was very shaken. "
There was a second incident on 21 November 1997, described in paragraph 25 of the Liability Decision, when:
" … the applicant, whilst performing his duties, suffered racial abuse from a tenant. The tenant said that the applicant was an "unhelpful black bastard". "
The finding of race discrimination by the Tribunal arose out of the Tribunal's conclusion that it failed to take adequate steps to protect the Applicant from September 1997 onwards:
" 135. … The tribunal is satisfied that the reason [for not sending a report form to the Personnel Section] was that Mr Ladbrooke did not consider the incident to be a serious one. He did not appreciate the importance of the complaint with regard to racial harassment and racial conduct. 136. Mr Ladbrooke handled the incident of 21 November 1997 in a similar way. … 139. By no later than 8 December 1997 the Council knew the applicant had been the subject of racial harassment and the applicant had made it clear he did not consider he should be working in such an environment exposing him to the possibility of further such harassment. … The Council did not take the request from the applicant to be transferred to work away from the estate seriously. 143. … the tribunal considers that it is appropriate to draw the inference that the reason the applicant's complaints were not taken seriously and that he was not properly considered for transfer elsewhere were because the grounds upon which he made the complaints, namely racial grounds. " 4.2 The second complaint of race discrimination which was established related to the period between November 1998 and December 1999, by virtue of the Appellant's failure to deal with the Applicant's grievance timeously and properly: " 152. The tribunal considers that the grievance was not adequately investigated by Mr Hardy establishing the precise nature of what was complained of and by interviewing the applicant himself and others with knowledge of what took place on the estate … 153. The tribunal is satisfied that the delay before Mrs Lockley was asked to arrange for the investigation to be carried out was largely not the Council's fault. The explanations given for the delays thereafter may be summarised as pressure of work. No adequate explanation was given for the inadequacy of the investigation itself. In the circumstances the tribunal does not consider the Council's explanation for the delay and inadequacy of the investigation of the applicant's grievance to be reasonable. 155. … The tribunal is satisfied that, on the balance of probabilities, it is more likely than not that a grievance relating to an issue which did not relate to a complaint of racial discrimination would have been treated with more gravity than was afforded the applicant's grievance. The tribunal considers that it is more likely than not that the Council treated the grievance raised by the applicant in the manner in which they did because it related to issues involving racial grounds. The tribunal considers it more likely than not that the Council would have treated a grievance relating to employment which did not relate to race in a different manner. It is more likely than not that the grievance would have been properly investigated and the investigation would have taken place in a shorter time scale. Therefore the applicant was treated less favourably than the Council would treat others on racial grounds. "
At the time, the Applicant was off work so far as the Appellant was concerned, and (as appears from the Tribunal's findings at the Remedies Hearing) was carrying out other work. 4.3 The failure by the Respondent Council properly to consider the Applicant for top-up of sick pay was found by the Tribunal to be disability discrimination. This related to the period from November 1998 onwards: " 168. It is often difficult to establish the cause of illness. It is particularly difficult to establish the cause of mental illness. As in many such cases, the situation is not clear cut. However the Tribunal considers that it is more likely than not that the applicant was refused Top Up payment because of the nature of the illness from which he was suffering and not because of the difficulty of establishing a causal connection [with] that illness or the worsening of that illness. … 169. In the circumstances of this case the applicant was suffering from a known and established mental condition. The applicant said the condition arose as a result of the racial harassment which he suffered in carrying out his work. There was medical evidence as to the causal relationship between that work and the applicant's injury. The tribunal is satisfied that for a reason relating to the nature of the applicant's disability, namely that it was a mental disability which was not post traumatic stress disorder, the applicant was treated less favourably than the Council treated and would treat others who had suffered from a physical disability. As a result, the applicant was not properly considered for Top Up which is a benefit. This amounted to discrimination as defined in section 5(1) of the Disability Discrimination Act and that discrimination was unlawful as is referred to in Section 4(2)(c) of the Disability Discrimination Act. " 4.4 The fourth complaint which was found related to the failure by the Appellant to make any reasonable adjustment by considering or discussing with the Applicant any alternative employment or different working conditions. The Tribunal found in paragraph 175 that " even taking into account the extent to which taking the steps would prevent the effect in question the tribunal finds that during 1998 and 1999 the respondents did fail to discharge their duty to make reasonable adjustments by considering whether there was suitable alternative employment for the applicant ".[5]In summary therefore the Appellant discriminated against the Applicant by failing to take sufficient steps to protect him between September 1997 and January 1998, and thereafter, during the period that he was away from work, they failed, in 1998 and 1999, to carry out an adequate investigation (although it appears that the delay itself was not found to be discriminatory), failed properly to consider payment of top-up and failed adequately to consider alternative employment. By the Remedies Decision the Tribunal awarded the Applicant the sum of £118,005.26, and it is against that award that the Appellant appeals.[6]It is quite apparent that, as a result of the eight-day Remedies Hearing, the picture looked very different, so far as the Applicant was concerned, from how it had appeared when the Tribunal was primarily concentrating on the conduct of the Appellant during the Liability Hearing. There were limited findings of fact made in the Liability Decision, at the conclusion of which, as set out above, the Tribunal had decided that the Applicant was disabled for the purposes of the Act as from January 1998 by virtue of his suffering from a mental condition. These limited findings, from which no conclusions were drawn for the purposes of that finding of disability, were:
" 73. The Council's Audit Department was asked to carry out an investigation with regard to the applicant to ascertain whether or not he was working during the period he was away from work sick. As a result it was established that the applicant was the sole director of a company … "
Diamond", which was incorporated on 8 July 1998. That company had four retail outlets. Physical surveillance was carried out between 19 October 2000 and 16 November 2000. On two occasions the applicant was seen at Diamond's Birchfield shop and on a third occasion his car was seen parked outside the premises. On 30 November 2000 and 1 December 2000, video surveillance was undertaken with regard to the applicant. On the first of those days, the applicant attended upon an operative from the surveillance company who indicated that he was interested in acquiring mobile telephone equipment. On 1 December 2000, the applicant opened the shutters at the shop. On that occasion, the applicant gave another operative from the surveillance company a card showing his name indicating that he was a director of Diamond. 74. At the time of the audit, the applicant drove a Range Rover, manufactured in 1989, which had a personalised number plate referable to the applicant and also a Rover 75, first registered in April 2000. The tribunal was told that the Rover 75 motorcar was provided by the applicant's sister, who was in possession of it pursuant to a hire purchase agreement … This car too has a personalised number plate referable to the applicant. "[7]There was however considerable further evidence adduced for the purpose of the Remedies Hearing, as to which the Tribunal made further findings. At paragraph 11 it is recorded that Diamond, of which the Applicant was the sole director, had taken over the business which the Applicant had previously run as a sole trader. The Tribunal made findings with regard to Diamond as follows:
" 15. Diamond operated mobile telephone shops in Birmingham, Nottingham and Sutton Coldfield. In the video footage the applicant was seen to be playing something of an active role at one of the shops. 16. The business of Diamond failed, and a winding-up order was made in respect of the company on 13 November 2002. The applicant told the tribunal that a cousin, Mr Neville Sinclair, had been responsible for the day-to-day running of Diamond until July 1999 when the applicant dismissed him. The applicant told the tribunal that the applicant had little involvement in the day-to-day operation of Diamond. In his statement to the tribunal, the applicant said when his family realised he was not getting involved with things they tried to encourage him by incorporating Diamond. When the applicant was questioned with regard to this, the applicant said that his witness statement was in error and his sister, Sharon, had run the business of Diamond after Sinclair left the company. "
[8]This inconsistency however was not the only one which the Tribunal pointed out. In paragraph 17 it referred to the fact that the Applicant completed documentation for the purposes of the Official Receiver, giving information with regard to Diamond and its trading activities, which was made as a declaration subject to the application of s5 of the Perjury Act 1911:
" 18. The applicant was the sole director of Diamond, and when he completed the form, and was asked to list the nature of duties and responsibilities of each of the officers of the company (it being explained that an officer included a director/manager or company secretary) the applicant included himself only. When requested to provide details of his duties and responsibilities and what he did on a day-to-day basis, the applicant said he was the director responsible for the running of the company from 1999 to 2002. When questioned at a later date by the Official Receiver, amplifying on that, the applicant said he was in overall control of all company activities. The applicant said he was in sole control, however some staff took certain matters upon themselves without authority. The applicant said he was particularly responsible for hiring and firing of staff and budgetary decisions. The applicant said the company secretary, who is now his wife, was only there to fulfil the legal obligations and had no other involvement with Diamond. The applicant said in 2000 he became ill and left his Council job and spent less time involved with Diamond – he claimed benefit from this point onwards. The applicant made reference to Jaddoo International Trading Ltd and Com-Net (UK) Ltd. He said they were currently non-trading companies, though they may wish to trade in the future. 19. The tribunal saw the papers relating to an application by the Employment Tribunal by Mr Sinclair, including a statement intended to be used by the applicant at a hearing of Mr Sinclair's claim. This indicates that the applicant dismissed Mr Sinclair and, in the statement, the applicant made extensive comment as to Mr Sinclair's involvement with the business and the performance of Diamond. "
[9]In those circumstances it is perhaps not surprising that the Tribunal made unfavourable findings in respect of the Applicant:
" 20. The tribunal has considered the extent of the applicant's involvement with Diamond after January 1998. The tribunal does not find the applicant's contention that his family sought to encourage him by incorporating the company Diamond, credible. Nor does the tribunal find credible the applicant's contentions that this was an effort to relieve him of business burdens. The applicant was the sole director of Diamond and, as he told the Official Receiver, was in overall control of its activities. The applicant was in sole control of the business and performed important managerial tasks for it. In addition, having seen the video-tape evidence and noted the applicant's familiarity with the products and activities of the shop, the tribunal is also satisfied that the applicant undertook some day-to-day activities for the business. The applicant's activities in connection with Diamond are not consistent with the applicant suffering from the degree of injury which he contends. 21. Insofar as Diamond is concerned, the tribunal is satisfied that the applicant had a greater involvement than he told the tribunal to the extent that he had a regular and substantial involvement with the management of that company after he ceased to work for the Council. The tribunal is satisfied that the applicant's involvement with Diamond was not a full time involvement, but it is likely to have exceeded 10 hours per week (the amount of time which the applicant told the Magistrates he devoted to Diamond when appearing to obtain the Protection Order relating to the liquor licence for the Adastra Nightclub in 1999 [another business venture of the Applicant during the relevant period to which we refer below] , when it was in his interest to underestimate the amount of time spent working for Diamond). "
[10]The Tribunal saw video footage at the Remedies Hearing showing the Applicant taking what the Tribunal described in paragraph 13 of its Decision, as " some action " in connection with a nail salon owned by Mrs Jadoo. The Tribunal found at paragraph 22 of the Decision that " on the basis of the evidence before it the tribunal finds that the applicant undertook some work for the nail salon operated by Mrs Jadoo, but it was of an insignificant amount ". However, there were other business activities involving the Applicant as to which the Tribunal made findings in the light of the evidence. It dealt, first, with the Adastra Nightclub. The Tribunal records, in paragraph 23 of its Decision, that on 23 February 1999 the Applicant applied for the renewal of a public entertainment licence relating to the nightclub, such application being made in his own handwriting, and, on 4 April 1999, for a transfer for such a licence. As for the liquor licence in relation to the nightclub, it was the Applicant who applied for a protection order in that regard on 15 January 1999, and the licence was transferred to him in May 1999, and the justices licence authorising the sale of liquor at the nightclub was renewed by way of further grant to him on 5 February 2001. The Tribunal records the substantial evidence in relation to the Applicant's involvement in such nightclub, for which he had thus accepted personal responsibility:
" 24. … The applicant told the tribunal that his involvement with the nightclub was solely as a friend of Mr Smith and he had no actual personal involvement in the running of the nightclub. The applicant told the tribunal that he attended the Adastra nightclub over the period from 1999 to 2001 on three occasions only. 25. It is clear that the applicant attended meetings of the relevant committee of the local authority with regard to the public entertainment licence at the Adastra nightclub. During those meetings the tribunal has no doubt that the relevant committee was under the impression that the applicant played an important part in the management of the nightclub, and the applicant knew that was the case and acted accordingly. The applicant said at a meeting on 27 October 1999 he considered that the staff of the club had acted properly during incidents at the nightclub known to the police, and was able to provide information relating to those incidents. The applicant personally completed several forms relating to the public entertainment licences at the Adastra nightclub. 26. On 14 December 2000 the applicant attended the meeting of the local authority committee in connection with the application for an occasional public entertainment licence on 31 December 2000 … The minutes say "
In summary, the applicant confirmed that he had arranged extra security for this particular function. He would also ensure that the car park area was controlled during the function … 27. The applicant attended another meeting of the local authority committee dealing with the public entertainment licence on 27 June 2001 …following a report submitted by the police relating to a number of incidents at the club. The minutes record that the applicant confirmed he was not always present but it was managed on a rota basis. The minutes say that the applicant said that all members of his door staff were experienced although he admitted they were not all licensed. The minutes say "responding to questions Mr Jaddoo indicated that he was present for approximately 80% of the time that the club was operational." … The minutes record that the applicant was happy to carry out the police recommendations with the exception of the installation of a metal detector walkthrough archway, and he indicated the nightclub would instead like to investigate the purchase of a handheld scanner. 28. On 26 September 2001 the applicant applied for a variation in the public entertainment licence relating to the nightclub 29. The applicant attended a meeting of the committee dealing with public entertainment licences on 21 November 2001. The applicant confirmed that a "clicker system" was in use … and said the handheld metal detector system was proving to be very effective. "[11]The contrast between the Applicant's evidence to the local authority committee that he was present for approximately 80% of the time, and his statement to the Tribunal that he attended the nightclub on three occasions only, is stark. The Tribunal's findings were as follows:
" 30. The tribunal does not find that the applicant's contention that he had no role whatsoever at the nightclub, other than by allowing his name to be used, to be convincing. Further his attendance at the Wolverhampton City Council committee meetings is not consistent with his claim that he avoids any unnecessary contact with people and will go to every effort to avoid any form of confrontation. 31. The tribunal is satisfied that the applicant had a substantial but fluctuating involvement in connection with the Adastra nightclub. The applicant told the tribunal that his involvement was limited to applying for the licences and attendance on at most two or three occasions. The tribunal does not accept this evidence, in particular because it is inconsistent with what the applicant told the Committee of Wolverhampton City Council … and also with the evidence of Mr Smith (which the tribunal considers itself understated the applicant's involvement with the nightclub) to the effect that Mr Smith contacted the applicant on a weekly basis with regard to the nightclub. If the applicant's involvement with the Adastra nightclub was as little as he claimed then it would be unlikely that he would be able to deal in such detail with the matters raised before him during the meetings. … "
[12]The Tribunal also dealt with the two other companies, as to which he gave evidence that they were non-trading, recorded in paragraph 18 of the Tribunal's Decision set out above. At paragraph 14 of the Decision, the Tribunal records that the Applicant was involved in the formation of both companies and was sole director of those companies, although he had since resigned. Once again the Tribunal was not satisfied:
" 32. In his statement to the tribunal the applicant said his sister set up these companies. In fact the applicant contacted his accountant for the purpose of doing so and the applicant was the sole director of each of them. It is to be recollected that the applicant told the Official Receiver that the companies were currently non-trading companies though they may wish to trade in the near future. When responding to questions from Mr Beaver, the applicant said that Com-Net (UK) Ltd, which has since changed its name to Diamond Cellphones (UK) Ltd, was his sister's company and that Jaddoo International Trading Ltd was a company formed for the use of a cousin based in Jamaica. By the time of the hearing the applicant had ceased to be a director of either company. 33. The tribunal is not convinced as to the applicant's explanation with regard to these companies. The applicant's involvement with them is certainly not consistent with the claimed actions of the applicant's family to avoid putting any pressure on the applicant. "
[13]The medical evidence that was adduced at the Remedies Hearing was considerably less favourable to the Applicant than it had been before the Liability Hearing. The third joint statement of agreements and disagreements between the two medical experts, while recording the Applicant's " self-report ", noted that:
" 6) Both doctors note the evidence presented by the respondents suggesting Mr Jaddoo has been engaged in employment, in particular his assertion to the Licensing Authorities that he played a substantial role in managing the … nightclub and the suggestion that he played a significant role in the day-to-day functioning of Diamond Communication Systems. Both doctors note that Mr Jaddoo has produced a statement denying these allegations. 7) If the tribunal accepts … the assertions referred to in 6) above, Mr Jaddoo's presentation to both doctors cannot be relied on. This is a matter of fact for the tribunal. 8) Both doctors agree that the video shows no evidence of mental disorder. Dr Hallstrom feels that the level of functioning shown is inconsistent with severe agoraphobia. Dr Kennedy does not feel that the video evidence is sufficient to refute the diagnosis agreed by both doctors. "
[14]The fourth and last such agreed document, consisting of questions and answers posed to them, not surprisingly listed facts which, if proved, would be inconsistent with the severity described in the Applicant's self-report, and left it that " the issue is whether Mr Jaddoo is/was as disabled as he described ". The doctors accepted that their diagnoses did not, in its milder form, " itself exclude near-normal social function ".[15]The Tribunal's findings with regard to his medical condition and ability to work were as follows:
" 34. Taking into account the tribunal's finding of fact, the medical reports, the evidence given by Drs Kennedy and Hallstrom and the answers given by [them] to the agreed questions on 1 March 2004, the tribunal finds that the applicant suffers from anxiety and panic attacks, but his self report to Dr Kennedy and Dr Hallstrom exaggerates the extent to which he cannot interact on a regular and consistent basis with others and to which he is affected in social situations. The tribunal is satisfied there are times when the applicant is symptomatic and this interferes with his enjoyment of life and at times it would interfere with his ability to work, but this occurs much less frequently than he told the medical consultants and the tribunal. 35. The tribunal is satisfied that the applicant's condition is likely to improve once these proceedings are concluded. 36. The tribunal is satisfied that prior to 1997 the applicant had a pre-existing anxiety disorder. The tribunal is satisfied that the Council's unlawful conduct exacerbated the applicant's pre-existing medical condition and resulted in a condition and … a significant deterioration in it. The tribunal is satisfied that, with appropriate medical treatment and co-operation by the applicant, it is likely that he will, following the conclusion of these proceedings, be able to recover significantly more than 65% of his previous working capacity [a percentage which had been suggested by a Dr Briscoe, consultant psychiatrist, in his letter dated 20 January 2003, plainly written without any knowledge of the matters set out above, but apparently based upon an understanding that he " could be in a position to gain some form of work within the next twelve months "]. 37. The tribunal is satisfied that the applicant is able to undertake more activities of a business-like nature than he told the tribunal. The tribunal considers it more likely than not that the applicant could undertake normal work in business relationships providing that he is not exposed to unlawful racial discrimination, or undue pressure. "
[16]Against that background, the Tribunal then turns to the 'figure work'. But it appears clear to us that there are serious questions as to whether the Tribunal adequately, or at all, carried forward its conclusions as to the facts into its calculations. The problems appear to arise in this way. In a very sensible and proper attempt to be of assistance to the Tribunal, the two Counsel then, as now, appearing for the parties, Ms Grewal for the Applicant and Mr Beever for the Appellant, had sought to agree as much as they could as figures in preparation for the hearing. The Applicant's case was put forward on the basis of a case of lifetime loss as a result of the Appellant's discriminatory conduct. The Applicant was nearly 32 at the relevant time and the Ogden tables would mean, to retirement at 65 (30 June 2031), a multiplier in respect of such lifetime loss of 20.8. The medical experts had agreed in their first joint statement, back on 5 June 2001, that it was their opinion that " given the state he was in at [September 1997] there was an approximate one in three chance of significant relapse within a five-year period ". Consequently the figures agreed as figures for the alleged loss claimed by the Applicant, severally to 15 November 2003, which is no doubt when it was originally anticipated the Remedies Hearing would conclude, and then on to 31 December 2004, was calculated on the basis of gross salary (with assumed increases) with the Appellant Council, less 28% tax, and then less one third based on the joint medical statement. His alleged future loss up till 30 June 2031 was calculated with the same multiplicand (i.e. after those two percentage deductions) and then an additional discount of 35% to allow for Dr Briscoe's percentage referred to in paragraph 15 above: and adopting the Ogden Tables multiplier of 20.8, from which Ms Grewal was prepared to concede a discount, to reflect risk of loss of employment of 0.02, so as to achieve a multiplier of 19.67.[17]The problem with these figures, agreed as figures, was(i) they were set out on the basis of the Applicant's claim, and at a time prior to the unfavourable findings of fact referred to above, and(ii) they did not take into account the guidance given by this Appeal Tribunal in Kingston upon Hull City Council v Dunnachie (No 3) [2003] IRLR 843, which was delivered on 30 July 2003 and reported in the December 2003 edition of the IRLR. As to the latter problem, Mr Beever has submitted that he would not feel able to put his appeal on the basis of non-compliance with such authority, because neither party had cited it to the Tribunal, and he had allowed the basis of calculation of figures agreed as figures to go before the Tribunal, and be argued on that basis; however, if his appeal were otherwise allowed and remitted to the Tribunal, then he would want to consider the application of Dunnachie on any such remission. We leave aside the precise position in relation to Dunnachie No 3 , although we are firmly of the view that the guidance in that case was intended to apply, not just to unfair dismissal, but in employment tribunals generally, and indeed in any case, in courts or tribunals, where there was a real issue as to whether career or lifelong loss arose. However the following matters, highlighted in Dunnachie No 3, are on any basis of relevance to this case and to our consideration of this case on appeal:17.1 There must be very great caution in relation to a conclusion as to the existence of lifelong loss where the applicant or claimant is as young as 31 or 32, as the Applicant was in this case at the time of the relevant incidents (cf Dunnachie No 3 at paragraph 32).17.2 Before the Ogden Tables are in the event adopted by a Tribunal, it must first conclude that the applicant's loss is prima facie lifelong or career long ( Dunnachie No 3 paras 22, 28, 29, 31, 33).17.3 There must, on any basis, be allowance within the calculations for the duty of an applicant or claimant to take reasonable steps to mitigate his or her loss (cf Dunnachie No 3 paragraphs 11(iv), 19, 28).[18]We do not need Dunnachie No 3 to be concerned at the kind of broadbrush approach which can result from the adoption of a large multiplier under the Ogden Tables followed by application of a wholly speculative and broadbrush discount to it (cf Dunnachie No 3 paragraphs 26, 30), as opposed to a calculation dedicated towards seeing what loss an applicant or claimant has suffered, and how long that loss, if any, is likely to last into the future.[19]In this case, although of course neither Counsel knew until the Decision what the Tribunal was going to decide, this Tribunal reached its findings in paragraphs 36 and 37 set out in paragraph 15 above, to which we shall return. On the basis of what obviously was at any rate one of Mr Beever's submissions, namely that there was no future loss, but hamstrung, as he appears to have considered himself, by having agreed as figures the sums for future loss by reference to a prima facie multiplier of 20.8, his submission appears to have been not that in those circumstances the Ogden Tables were not appropriate at all, but that (as recited in paragraph 52 of the Decision) the multiplier should be " between 0 and 9 ", i.e. the multiplier could or should be zero or something close to it. Quite plainly, once such a heavy discount, not to speak of a 100% discount, is to be applied to what is to start with such a large multiplier, based on lifelong loss, that in itself shows how inapt it would be to apply the Ogden Tables at all, on his case. Nevertheless, implicit in the making of such submission was that, in the light of such findings as he invited the Tribunal to make (and we shall consider further below the findings that it did make), the reality was that there was no or no material continuing loss, and certainly no lifelong loss.[20]Bearing in mind therefore the findings of the Employment Tribunal on the evidence before it, we turn to the heads of its award, based upon the figures put before it agreed as figures. We deal first with past loss. Past Loss[21]By the time the Employment Tribunal delivered its Decision, it was 7 April 2004. The Tribunal continued the past loss claim up to 31 May 2004, amalgamating the two different calculations referred to above, but with a cut off date of some six weeks after the Decision. Mr Beever does not specifically complain of that. The Tribunal was thus dealing with the entire period from 26 June 1998 (when, the first six months of sick leave having expired, the Applicant's salary was reduced to 50%) and then from 26 December 1998, when the half pay expired, a period of nearly six years; upon the basis discussed, of deducting 28% for tax and then one third based upon the 1:3 chance of recurrence of the pre-existing condition during that period, and then less two thirds of the benefits received of some £38,000 and the interim payments made by the Appellants of £15,000. The net sum was £12,901.95. This calculation made no allowance whatever for: i) the findings made by the Employment Tribunal as to the substantial work done by the Applicant during that almost six-year period for Diamond, Adastra etc. The Tribunal's only finding was (paragraph 46): " it has heard no evidence that the applicant was involved in work which generated income during that period ". ii) findings made by the Employment Tribunal, as to the capacity of the Applicant, (in the light of its conclusion that he had exaggerated his account to the medical experts and his undertaking of " more activities of a businesslike nature than he told the tribunal ") that on any basis (paragraph 34) " there are times when the applicant is symptomatic [which] … at times … would interfere with his ability to work, but this occurs much less frequently than he told the medical consultants and the tribunal " and that (paragraph 37) it is " more likely than not that the applicant could undertake normal work and business relationships provided that he is not exposed to unlawful racial discrimination, or undue pressure ".[22]Mr Beever drew the Employment Tribunal's attention to Gardiner-Hill v Rowland Berger Technics Ltd [1982] IRLR 498, and relied upon it. Ms Grewal accepts that this was so, and submits by reference to that case that, in the absence of any concrete evidence put forward by the Appellant as to the steps that the Applicant should have taken to mitigate his loss, and as to when and how much income those steps would have generated, the Tribunal's failure to deduct any amount for failure to mitigate cannot be said to be perverse. However, the Tribunal does not mention Gardiner-Hill or any conclusions based upon it at all. In that case the judgment was given by Browne-Wilkinson P on behalf of the EAT. It was a case in which the applicant had spent six months setting up a new business, and Browne-Wilkinson P concluded that (paragraph 13) there was " no ground for saying that Mr Gardiner-Hill acted improperly and unreasonably in seeking to re-establish himself by establishing his own business. On that basis we can see no ground for disallowing anything on account of failure to mitigate his loss between 20.5.81 and 9.12.81. He must, of course, bring into account his earnings of £1500 during that period ". But at paragraph 10 of the judgment, Browne-Wilkinson P recorded, while rejecting the respondent's allegation in that case that by not applying for another job the applicant had therefore as a matter of law automatically failed to mitigate his loss, that the law nevertheless was that the " duty on a claimant is to take such steps as in all the circumstances are reasonable to reduce the loss he suffers from the respondent's wrongful act ". He continued (at paragraph 11) " … in our view, the [Employment] Tribunal has approached this matter without adverting to the relevant question (viz 'was it in all the circumstances reasonable for Mr Gardiner-Hill to do what he did do?') and instead simply assumed that, because he failed to seek employment by another person, he had failed to mitigate his loss ". The Tribunal plainly did not ask itself any such question in this case. It rejected almost all of the Applicant's evidence. It would appear therefore that he was not simply 'helping out'. It was clearly insufficient simply to record that there was no evidence that he received any income, though we note that the Tribunal did not refer in the Remedies Decision to its finding in the Liability Decision in relation to the acquisition or use by him in relation to the business of a substantial car or cars, which may give some indication that at any rate benefits were received. There are no findings as to why, if he did indeed receive no income, he was not paid in respect of all that work. Because he was receiving some other benefit? Because it was specifically arranged that he should not be paid, by virtue of his entitlement to state benefits and/or his potential claim against the Respondent? Was it in all the circumstances reasonable for [the Applicant] to do what he did do , i.e., if such be the case, to do no remunerated work for nearly six years, when he was fit to do so? This is a question which the Employment Tribunal did not address. In our judgment it erred in not doing so, and had it done so there might well have been a finding of no net past loss. The Tribunal set off the interim payments against this head. Dependent upon the Tribunal's findings, and also dependent upon the terms on which the interim payments were made (as to which we have no information), some or all of the interim payments might have been available to set off against one or other of the other heads. Future Loss[23]It is conceded by Ms Grewal that the Employment Tribunal's calculation of future loss by reference to its multiplicand cannot stand, but she submits that we should either substitute a different amount or remit on that basis only. This error in the multiplicand is the clearest case (and conceded by her) in which the Employment Tribunal fell into error by not carrying forward its findings in the first part of its Decision into the calculations in the second part of its Decision. The future loss multiplicand was calculated, on the basis of the figures put before the Tribunal, by reference to the Applicant's gross salary, less tax and the one third by reference to the pre-existing condition; and it was then further discounted by 35%. This arose, as we have explained, as a result of the statement by Dr Briscoe in his letter of 20 January 2003 (referred to in paragraph 15 above) that " I have come to the conclusion that on the balance of probabilities … he would be able to recover to 65% of his previous working capacity. This figure is not easily calculable, but weighing up all the various aspects with regard to Mr Jaddoo's situation I believe that this figure is a reasonable estimate ". This is how the multiplicand of £4022.42 was arrived at in the figures placed before the Employment Tribunal. The Employment Tribunal adopts the figure, based on such calculation (paragraph 50 of its Decision). But this ignored the Tribunal's own findings at paragraph 36, set out above that " it is likely he will, following the conclusion of these proceedings, be able to recover significantly more than 65% of his previous working capacity " (our underlining). Dr Briscoe's 65% was based upon an entirely false basis, in the light of the subsequent evidence and the Tribunal's findings. By reference to paragraph 36, and also to paragraph 37, recited above (" more likely than not that the applicant could undertake normal work … "), Mr Beever submits that there was thus no loss of earning capacity at all, i.e. he would be at 100% of his previous working capacity or at worst 95%. Ms Grewal submits that 80% may be realistic. Of course all this depends upon it being appropriate to adopt a lifelong loss and the Ogden Tables at all, but, on any basis, the Employment Tribunal's finding of 65%, leading to a multiplicand £4022, then multiplied by 10, so arriving at £40,224, cannot stand; and we are not able, nor willing, ourselves to substitute any other percentage figure.[24]As to the multiplier, we cannot help noting that this is just such an exercise, namely the reduction of a multiplier of 20.8 down to 10, to which reference was made in paragraph 26 of Dunnachie No 3 , namely an " air of spurious accuracy ", with " great care … devoted to selecting the correct table and the correct rate of return and the correct multiplier to two decimal places – and yet then a broadbrush percentage discount, 50% or 30% , is suddenly chosen and applied " or even " the possibility of a 95% discount ". Having arrived at the multiplicand of £4,022.24 and, presented with an Ogden multiplier of 20.8 (less a small discount conceded by Ms Grewal as described in paragraph 16 above), the Tribunal makes the following concise findings:
" 52. The tribunal has then moved on to consider the multiplier. Ms Grewal said that the multiplier should be 20.8 reduced by … 0.02 (to reflect the risk of loss of employment) to 19.67. Mr Beever said that the multiplier should be between 0 and 9 to reflect the true extent of the applicant's capacity to work taking into account an exaggeration of the applicant's symptoms, the fact that it is unlikely that the applicant would work beyond his 58 th birthday since by then he would have 40 years service with the Council and that Ms Grewal does not incorporate adequate reduction for other matters as are referred to in the Newsome case. 53. The tribunal is satisfied that, whilst the applicant suffered, and continues to suffer from his medical condition, he does exaggerate the symptoms resulting from it. The tribunal reaches that conclusion because, on the findings of fact made by it, the applicant was much more actively informed in the business of Diamond and of the Adastra nightclub than he told the tribunal, and, further, he had personal involvement in other companies which were set up by, or for, him for the purpose of business. Regrettably the tribunal is unable to rely on the applicant's description of the symptoms of his medical condition or of the effect upon him. 54. The applicant is clearly an entrepreneurial person, as is shown by his involvement in various businesses, and it is likely that he will participate in businesses that will generate income, and it may be that such would cause him to terminate his employment with the Council earlier than would otherwise be the case. The tribunal is also satisfied that there may well have been other reasons for the applicant terminating his employment with the Council, or his employment being terminated well before his 58 th birthday. Taking these factors into account, the tribunal considers that the appropriate multiplier in this case is 10. This results in a future loss of £40,224.20. "
[25]Ms Grewal, in response to a question from the Bench as to what the meaning is of the apparently central first sentence in paragraph 54, submits that there is, or must be, a misprint, and that the second part of the sentence ought to read " and it may be that such would [have] cause [d] him to terminate his employment with the Council earlier than otherwise [would have] be [en] the case ". Thus she submits:25.1 that the Tribunal is addressing what, in Dunnachie No 3 -terms, would be described as " old job facts " and not, as would otherwise have appeared to be the case by reference to the use of the future tense, " new job facts ".25.2 that the choice of the multiplier of 10 is much closer to, if not consonant with, the multiplier that was being sought by Mr Beever, rather than the multiplier of 19.67 that she was seeking, and thus Mr Beever can hardly complain by way of appeal of the adoption of such multiplier.25.3 that the Tribunal is entitled, by reference to the factors set out (after allowance made for its misprinted or misexpressed first sentence), to apply a 50% discount to the multiplier of approximately 20 for which she was contending.[26]Hence she submits that the adoption by the Tribunal of a multiplier of 10 is justifiable and cannot be described as perverse.[27]Mr Beever, however, responds that his submission of a multiplier of " 0 to 9 " was intended to reflect or include a case that there was no, or virtually no, loss, and that the adoption of the multiplier of 10 is wholly inadequately reasoned in the Decision.[28]We are not persuaded by Ms Grewal that her correction of the first sentence of paragraph 54 is necessarily correct or sufficient. At the very least it would also need correction of the middle phrase in the sentence to read " It is likely that he [would have] participate [d] in businesses which [would have] generate [d] income ", but the very real problem for us is that the brevity of reasoning in relation to the multiplier has to be taken together with the conceded error in relation to the multiplicand. We leave aside the fact that, in our judgment, the first step was omitted by the Tribunal, namely to consider whether there was lifelong loss at all justifying the use of the Ogden Tables, as opposed to a calculation by comparison of what is now going to happen with what might have happened, to see whether there is a continuing loss, and if so for how long. However, accepting, for the reasons set out in paragraph 17 above, the fact that this Tribunal adopted the Ogden procedure, it is essential that, whether by reference to the multiplier or the multiplicand, there has to have been a sufficient, and properly thought through, allowance for the Tribunal's own findings. Those findings were, or may have been, that, by virtue of the Applicant's entrepreneurial skill, contacts and involvement, he could already have earned or could now immediately earn, or could in some short projected timescale now earn, at least as much as the net salary he earned at the Council, even before the necessary allowance for the risk of his pre-existing condition recurring in any event. The findings of this Tribunal, compounded by the last sentence of paragraph 53 quoted in paragraph 24 above, render it impossible for us to say that this Tribunal's broadbrush approach can be justified. Because we are remitting the matter back to the same Tribunal, for reasons which we set out below, we say no more at this stage than that it is impossible for us to say, as Ms Grewal would have us say, that it is only the erroneous multiplicand that must be remitted. In the light of the evidence that was before it, and any further evidence which may be permitted by the Tribunal to be adduced, this Tribunal must consider again whether there is any future loss, and if so over what period and in what sum and how, if at all, it should be calculated.[29]There are two matters ancillary to the issue of future loss that must be mentioned. The first relates to future pension loss. The Tribunal's decision in this regard is set out in paragraph 55 and 56 of the Decision. Mr Beever put forward discrete arguments in relation to this, to which persuasive response was put forward by Ms Grewal. We are satisfied that this head must go back for reconsideration, together with the balance of the future loss claim, simply for these interlocking reasons: i) If it were concluded by the Tribunal that, not only is there no future loss, but by virtue of his entrepreneurial skills, the Applicant might positively earn more than if he had remained with the Council, then any pension loss would, in those circumstances, be outweighed by an earnings gain. ii) Interrelated with this is our understanding that, on the whole, the pension position is more favourable to employees in the public sector than in the private sector, although there was no particular finding in this regard by the Tribunal. It may be that it would be necessary to consider the issue of pension loss discretely or, alternatively, it may, very much for the reasons set out above, be necessary to consider whether, in the private sector, the Applicant may have a less good, or no, pension entitlement, and yet receive a higher salary to compensate.[30]The other matter related to the cost of psychotherapy treatment. This is referred to in paragraph 38 of the Decision, in which the Tribunal records that " the Council has made payment, and proposes to make further payments, for psychotherapy treatment for the applicant ". This was based on what was said in the calculation document, prepared by both Counsel, and put before the Tribunal, namely " the respondent undertakes to pay for treatment of A up to £23,532 ". In the light of the Tribunal's findings, and the evidence before it, the Council is reluctant to make, and has not made, any further payments. There is no evidence before us as to whether, in any event, the Applicant has undertaken any further treatment, or would now benefit from it. Mr Beever submits that it was implicit in his case that no continuing loss was suffered in the light of the evidence as it came out before the Tribunal, i.e. subsequent to the submission of his written undertaking that this did not any longer apply, and that, although there was no express withdrawal by the Appellant of any such undertaking or promise, it was implicitly so withdrawn, by virtue of the case thus put forward in the light of the evidence. We did not hear argument from Ms Grewal in relation to this aspect, and are of the view that this too should be looked at again by the Tribunal in the light of the whole of the evidence before it on remission, including consideration of whether continuing psychotherapy treatment has been undertaken and/or is now in fact necessary: and in the total context of any award of future loss. Injury to feelings and psychiatric damage[31]We have taken these together for reasons that will become apparent. The Tribunal awarded the sum of £20,000 for both race discrimination and disability discrimination taken together (although the Tribunal separately justified this by concluding they would have awarded £10,000 for each), and £17,500 for psychiatric damage, making a total of £37,500. We have looked at this in total because:31.1 This award of £37,500 is made in respect of the discriminatory treatment (by failure to take sufficient steps of the Applicant by the Appellant), the facts of which, as found by the Tribunal, are set out in paragraph 4 above, in respect of an Applicant with a pre-existing condition for which the Appellant was not responsible, and who had been the subject of two racial incidents, for which, again, the Appellant was not responsible.31.2 The Tribunal awarded £20,000 for the two discriminations together at the instance of both Counsel (" with some misgivings ": paragraph 58).31.3 Although the Tribunal noted, in paragraph 44 of its Decision, that it was " satisfied that there are substantial "overlaps" between the heads of financial loss suffered by the applicant as a result of the Council's unlawful acts ", it did not make the same note in relation to the inevitable overlap between injury to feelings and psychiatric damage suffered by this Applicant, and the Tribunal does not appear to have done what it is obliged to do, namely:(i) as enjoined by Mummery LJ in Vento v Chief Constable of West Yorkshire Police (No 2) [2002] IRLR 102 at paragraph 68, to take steps to have " regard … to the overall magnitude of the sum total of the award for compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage " such that " in particular, double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage " and/or(ii) in accordance with the guidance of the Employment Appeal Tribunal per Mr Recorder Underhill QC in HM Prison Service v Salmon [2001] IRLR 425 that it is " necessary to stand back and consider the non-pecuniary award as a whole ".[32]We have a number of concerns, which we shall set out below, in relation to the Tribunal's findings in respect of non-pecuniary loss, which are in paragraphs 57 to 60: " Injury to feelings.57. The tribunal has been aided in its consideration of compensation for injury to feelings by the decision in Vento .58. The tribunal is conscious of the fact that it is dealing with unlawful race discrimination and unlawful discrimination based upon disability and so that two awards are appropriate in respect to injury to feelings. However, counsel asked the tribunal to deal with the injury to feelings arising both from the racial discrimination and the discrimination based upon disability, in one sum. Although it has some misgivings in doing so, the tribunal has done as counsel requested.59. Taking into account the incidents in late 1997, the manner in which they, and the grievances arising from them, were dealt with and the failure to even consider making adjustments, the tribunal is satisfied that injury to the applicant's feelings falls within the top band mentioned in Vento . The Council was aware that the applicant was vulnerable and took no steps to assist or protect the applicant, notwithstanding his use of the harassment procedure on several occasions. The tribunal considers that the cumulative injury in this case falls within the middle of the top band in Vento and therefore awards the applicant £20,000. In the circumstances, the tribunal has asked itself what would be the position if it had looked at the injury to feelings arising from the unlawful discrimination on grounds of race, and at the injury to feelings arising from the unlawful discrimination on grounds of disability, separately. If it had done so, it would have concluded that, whilst the injury to feelings looked at cumulatively falls within the top band mentioned in Vento , looked at as discrete unlawful acts the injury would in each case fall within the middle band attracting in each case compensation in the order of £10,000, so that the use of the approach favoured by Counsel produces a similar result to that which most attracted itself to the tribunal. Psychiatric damage60. Counsel addressed this issue on the basis that the psychiatric injury for all the wrongs should be dealt with together. The tribunal has adopted this approach because, on the basis of the evidence before it, the tribunal is not able to apportion psychiatric injury suffered by the applicant between the wrongs which he has suffered. In considering this aspect of the applicant's claim, the tribunal has considered the guidance of the Judicial Studies Board Publication as to this type of injury. In particular the tribunal has taken into account the applicant's ability to cope with this [life and] work, the effect on the applicant's relationship with his family, friends and those with whom he comes into contact (in respect of each of these matters the tribunal reckons that the applicant was exaggerating the position), the extent to which treatment would be successful, future vulnerability, the medical prognosis and the relationship between the applicant and the Council and its employees. Having done so, the tribunal considers that the applicant falls within the category of moderate to severe psychiatric damage. Again, in this case, the damage falls within the mid band and is £17,500.[33]Vento . We have set out the findings as to race and disability discrimination in paragraph 4 above. Looking at Vento , this case would appear to be far from the most serious of complaints. The Appellant Council was found liable because it failed to take steps on racial grounds, i.e. when the tribunal concluded that, had the complaints not been on racial grounds, they would have dealt with them more efficiently. The actual racial abuse was the act of third parties; there was no campaign of harassment nor, indeed, any positive conduct for which the appellant was responsible. The inadequate steps by way of racial discrimination, in respect of the Applicant's complaints of abuse by the third parties, continued only for a relatively short period of something over three months, while he was actually working for the Appellant. The other discriminatory treatment started, and continued, while he was away from work (and, as above, was in fact working in other businesses). It would appear difficult, if not impossible, to place the inadequate treatment so found in the top band of Vento taking all together. Insofar as this is justified by severing the discriminations up into two lots of £10,000:33.1 No, or no adequate, consideration was given as to justifying £10,000 in respect of the alleged injury to feelings with regard to each of the two sets of discriminations, particularly in relation to causation (see below).33.2 There is no consideration of whether the two sets of discriminatory treatments are of equal seriousness, such as genuinely to attract the same sum, £10,000, in respect of each. It seems far too simple to say, without consideration, that that is the case. It would have appeared, at any rate at first blush, that the inadequate steps to support the Applicant, amounting to race discrimination, while he was still employed by the Appellant, was more serious, and is (subject to what we say below), more likely to have led to injury to feelings, than the failures which did not start until considerably later, and at a time when he had ceased to work for the Appellant. The very attempted justification for the £20,000, by way of splitting it into two lots of £10,000, casts doubt on the whole approach.[34]Causation in respect of injury to feelings . In Ministry of Defence v Cannock [1994] ICR 918, Morison J, sitting in the Employment Appeal Tribunal, giving general guidance at 954E, said as follows:
" Compensation for injury to feelings is not automatic. Injury must be proved. It will often be easy to prove, in the sense that no tribunal will take much persuasion that the anger, distress and affront caused by the act of discrimination has injured the applicant's feelings. But it is not invariably so. "
[35]We have set out above the Tribunal's dealing with this issue in paragraphs 57 to 59 of the Tribunal's Decision. The Tribunal makes no express finding that the Applicant did in fact suffer injury to feelings, and, if so, when and in what manner, or that that injury to feelings resulted from the discriminatory treatment found by the Appellant, and if so which and how. This is of particular significance given the express finding by the Tribunal that (paragraph 53) it is " unable to rely on the applicant's description of the symptoms of his medical condition, or of the effect upon him ". We can appreciate that the Applicant may well have suffered – or could perhaps, if such were the finding, be inferred to have suffered – injury to feelings in respect of the race discrimination between September 1997 and January 1998 (although it would have to be distinguished from any injury to feelings caused by the acts of the third parties for which the Appellant is not responsible). However it is not at all clear that there would have been any injury to feelings caused by the later acts of discrimination, particularly if the Applicant was by then fully engaged in his other, entrepreneurial, activities.[36]Causation in relation to psychiatric damage . The same applies, together with the same caveat about the Applicant's credibility. Whereas the Tribunal expressly states that it is " not able to apportion the psychiatric injury suffered by the applicant between the wrongs he has suffered ", there is no primary conclusion in relation to any of the discriminatory treatment that it caused the (exacerbation of the pre-existing) condition of the Applicant. We note that, perfectly understandably, even the medical experts (in paragraph 4 of their first agreed statement) were addressing the question of causality by reference not to any discriminatory treatment by the Appellant, but to the racial attacks themselves.[37]Judicial Studies Board . However, even assuming the existence of sufficient finding in relation to causation, we are persuaded that the Tribunal erred in its approach to the award it made in respect of psychiatric injury. It made the award, on the face of it, by reference to the Judicial Studies Board (JSB) Guidance under the heading "Psychiatric Damage", and, in paragraph 60 of its Decision, it recites directly from that document the factors to be taken into account. However:37.1 Fundamentally, perhaps because the agreed 1:3 approach in respect of likelihood of recurrence of the pre-existing condition (see paragraph 16 above) had been relegated to the calculation documents, and had not been the subject of any argument or disagreement between the parties, the Tribunal ignored the fact that it was not valuing the condition per se, but the exacerbation of a pre-existing condition which, on any basis, had a 1:3 chance of having recurred. The approach to this problem adopted in Salmon , which Ms Grewal did not criticise, was to reduce the compensation by the relevant percentage on the basis (see the headnote at 425) " that her depressive illness was only caused to the extent of 75% by the acts of discrimination that had been proved ". This aspect was on any basis overlooked by the Tribunal.37.2 In any event, in the light of the Tribunal's own findings, particularly at paragraphs 35 to 37, it would appear difficult, at any rate without express consideration which does not appear in the Tribunal's Decision in paragraph 60, to accept that the " moderately severe " category as defined is the appropriate place for the Appellant, with his probable ability to undertake normal work and business relationships. Totality[38]Whereas in respect of any one of these concerns, there might have been some argument as to whether the Decision of the Tribunal could be characterised as perverse – although, as we have indicated, many of the criticisms in this regard are not on grounds of perversity, but on grounds of misapplication of the law and/or inadequate reasoning; nevertheless, we are entirely satisfied that, taken together, both by virtue of the criticisms of each of the parts, but also by virtue of the failure of the Tribunal to follow the important guidance in Vento and Salmon to look at the totality of any such non-pecuniary award, the award of £37,500 is perverse and cannot be supported. Conclusion[39]We are therefore satisfied that the whole of this Decision, both as to pecuniary and non-pecuniary loss, must be quashed and remitted to the Employment Tribunal. The issue arises as to whether it should be remitted to the same Tribunal or a different Tribunal. We have been referred to a recent decision of this Appeal Tribunal, differently constituted, in Sinclair Roche and Temperley v Heard [2004] IRLR 763 . We do not propose to repeat the guidance there set out at paragraph 46. We did not find this an easy decision. We are heavily influenced by the fact that it would appear that, when this Tribunal reconsiders its decision, it may have to rethink very substantially. Clearly, on the basis of the submissions of the Appellant, the conclusions previously reached by the Tribunal would be in a wholly wrong ballpark. However we are persuaded by the following:39.1 Any Tribunal which heard this case would have to base itself on the evidence already heard, and the findings of fact already made, and this Tribunal would be far better placed to do so than any other Tribunal, if indeed the other Tribunal could be put into that position at all without rehearing the evidence, which would, after all this time and those days of hearings, be well nigh unthinkable.39.2 There has already been considerable delay in this case, and the less delay now by way of remission, the better, and the involvement of a new tribunal would obviously take extra time.39.3 It may be that a good deal of the error into which we are satisfied that this Tribunal fell was the result of the approaches adopted by Counsel, and, in particular, acquiesced in by Counsel for the Respondent, and possibly by the failure of anyone to have in mind any assistance that could be drawn from Dunnachie No 3 , which we conclude would have been material.39.4 We repeat and adopt what was said in paragraph 46.6 of Sinclair Roche by reference to tribunal professionalism . We are satisfied that this is a case, where a tribunal has been put right and redirected, in which there can be the " presumption that it will go about the tasks set [it] on remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal ". It will be important for the Tribunal, on the remission, to have an entirely open mind, based of course upon the findings it has already made, any further evidence it hears and the guidance of this judgment.[40]The best assistance that we can give is that this tribunal must simply and straightforwardly consider, on the tortious basis, what loss if any, either pecuniary or non-pecuniary, and so far as pecuniary is concerned whether past, present or future, caused by the discriminatory treatment by the Appellant found by the Tribunal, has been suffered by the Applicant. These are the reasons for which, at the conclusion of the hearing on 13 October, we allowed the appeal.