DARLINGTON & DURHAM COUNTY RACIAL EQUALITY COUNCIL v MS S K DALE [2004] UKEAT 0749_03_2701

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0749_03_2701Case No Appeal No. UKEAT/0749/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DARLINGTON & DURHAM COUNTY RACIAL EQUALITY COUNCILAPPELLANTMS S K DALERESPONDENT
Before
His Honour Judge J WilkieDate 27 January 2004
[1]APPEARANCES For the Appellant MR R CLEMENT (of Counsel) Instructed by: Messrs Duncan Lewis & Co Solicitors 1 Kingsland High Street Dalston London E8 2JS For the Respondent MR E LEGARD (of Counsel) Instructed by: Messrs Archers Solicitors Barton House 24 Yarn Road Stockton on Tees TS18 3NB HIS HONOUR JUDGE WILKIE QC This is an appeal by Darlington and County Racial Equality Council against Decisions of the Employment Tribunal held at Newcastle upon Tyne on 20, 21, 24 and 25 March last year. The Tribunal had decided as follows; that the Applicant's claim for unfair dismissal be dismissed for want of continuity of employment; that her claim that the Appellant breached her contract of employment was well founded, the Appellant being ordered to pay £7,646.58; that the Applicant was entitled to a declaration that the Appellant had failed to pay her holiday pay under the Working Time Regulations 1998 £751.80, being awarded; that her complaint that she had been discriminated against contrary to the Race Discrimination Act and that she had been discriminated by way of victimisation, contrary to section 2(1) of the Race Relations Act 1976 , be upheld, the Appellant to pay the sum of £30,395.09 in respect of those discriminatory acts; and that the Appellant be ordered to pay the Applicant's costs, such costs to be subject to a detailed assessment if not agreed.[2]We are indebted to both Counsel involved in this case for the clear and full Skeleton Arguments which each of them has submitted and the efficient and realistic way in which each of them has addressed us orally today. The Appellant initially raised 13 grounds of appeal, but we gave permission for them to add a 14 th ground arising out of a clarification by the Tribunal of a particular aspect of their original Decision.[3]The hearing of the case took place over a period of four days. The Tribunal records in full terms the events of 20 and 21 March. On 20 March the Tribunal was attended by a person, Mr Lindsay, who said that he was the Appellant's representative. He was unable on that occasion to take part in the hearing because he claimed that he was unwell and provided a medical certificate. The Tribunal regarded the 20 th March as a reading day and read into the case, there being a substantial quantity of documentation, all of which had been provided by the Applicant, none of which, except for an ET3, had been provided by the Respondent.[4]On 21 March the Applicant with her representatives was present in time for the start, but there was no sign of Mr Lindsay until after the hearing on that date had taken place. On that occasion the Tribunal adjourned the matter over the weekend to 24 March on the basis that the Respondent was to be given a final opportunity to attend through a representative who was capable of conducting their case. Mr Lindsay attended on 21 March after everyone had gone home, except for the Tribunal Chairman, and the terms of the adjournment were explained clearly to him, the terms of the adjournment were faxed to the Respondent that very day.[5]On 24 March the Applicant and her legal team attended, together with various witnesses who gave evidence on her behalf, but the Respondent was not present at all and took no part in the Tribunal hearing. It therefore meant that the evidence of Ms Dale was untested by any cross-examination by the Respondent and was uncontradicted by any evidence whether in the form of a written statement or oral evidence from the Respondent.[6]The Tribunal, from paragraphs 12 through to paragraph 33, made very full findings of fact and in paragraphs 34 to 40 recorded accurately and fully the submissions which Mr Legard, Counsel for the Applicant and for the Respondent to this appeal, made to them. Paragraphs 41 through to 54 of the Decision sets out at length the legal position in respect of the various claims that were being made, including the requirement of the Tribunal to consider and to decide whether or not to accept, on the balance of probabilities, the evidence of the Applicant, including the provisions as to time limits and including, amongst other things, references to victimisation, the leading case on victimisation, the case of Khan , the Regulations concerning costs and certain authorities concerning costs.[7]In addition, those paragraphs contained detailed consideration of the legal issues which might arise where a claim for aggravated compensation was sought, as well as those cases concerning compensation for injury to feeling. They referred to the various bands of award that might be made under that head, the parameters of those bands and the characteristics of cases which fell respectively into those various bands.[8]As we have indicated, the Appellant has put forward fourteen grounds of appeal. The Respondent to the appeal has indicated that in their view a number of those grounds raise new points which were not raised either in the ET3 or before the Tribunal and that, insofar as those grounds are genuinely new grounds or are new grounds which might, for their determination, require further findings of fact, we should adhere to the very strict rule which applies in this Tribunal, prohibiting parties who have had the opportunity of a first instance hearing, raising new points, having a "second bite at the cherry", as it is colloquially termed. We are invited, therefore, to dismiss those various points regardless of their substantive merits.[9]We have been referred to the relevant authorities: Kumchyk -v- Derby County Council [1978] ICR 1116 , Glennie -v- Independent Magazines (UK) Ltd [1999] IRLR 719 ; Jones -v- Governing Body of Burdett Coutts School [1998] IRLR 521 , that last being a decision of the Court of Appeal. In our judgment, the various points which have been identified by Mr Legard as amounting to new points are indeed such and, in our judgment, the appellant ought not to be permitted to raise them. However, in any event, we have considered whether any of them have any merit and, as we will go on to indicate, we think that they are devoid of merit, even if it was open to the Appellant to raise them.[10]The first ground would, if it were right, effectively be a knock-out point for the claims of racial discrimination. The Applicant below presented her Originating Application on 14 August 2002. Therefore, the Appellant suggests that any alleged racially discriminatory remarks which occurred before 15 May 2002, three months before the Originating Application, would be out of time. The history of the facts of the matter were that the Applicant was complaining of a whole series of allegedly discriminatory practices and comments right through to a period in February when she raised a grievance, following which she was suspended. Thereafter there was a decision to dismiss her which took effect on 15 May, she being given one month's notice of termination by a decision taken on 14 April. Therefore, it is said that in any event, any complaint relating to discriminatory remarks was out of time. Although an allegation of dismissal by reason of discrimination would have been in time, it is said that the Tribunal approached their Decision, the dismissal not as an issue of discrimination, but as an instance of victimisation.[11]The Skeleton Argument of Mr Legard points out, as indeed is accepted by Mr Clement, that where the act of discrimination is or includes dismissal, time will not begin to run from the date on which notice is given, but from the date on which the employment terminates. If that were so, then the complaint would be in time, but only so far as the discriminatory act involved or included dismissal. In our judgment there is simply nothing in this point. The Employment Tribunal had specifically in mind the time limits. They referred specifically to them. They found as a fact in paragraph 57 that the application was in time. In paragraph 58 they found as a fact that the Appellant had treated her less favourably by humiliating her, and intimidating her, and treating her in a hostile way throughout the whole of her employment.[12]It is plain to us that from the terms of the ET1 the case of the Applicant was to the effect that the dismissal was the culmination of that continuing course of discriminatory conduct and we see nothing in the reasoning of the Tribunal to support the suggestion that where, in paragraph 59, they deal with the question of dismissal, it is being treated as a separate and distinct matter from the complaint of discrimination which had been referred to in paragraph 58. They make an express finding that she was dismissed because she was raising complaints of race discrimination and had done so by a letter dated 14 February. That qualifies both as an act of discrimination and also as an act of victimisation and we think it is simply unrealistic to suggest that these two matters were so separated in the Tribunal's mind that the alleged act of discrimination did not include dismissal. Therefore, in our judgment, the Tribunal, in paragraph 57, by saying that the application was in time and then going on in paragraphs 58 and 59 to deal with the matter as they did, were plainly acting correctly as a matter of law.[13]Ground two is also said to be a new point. That is to the effect that the Tribunal was perverse or erred in law in concluding that, as a matter of contract, the Applicant was entitled to three months' notice of termination. The essential basis for this is that the documentary evidence that demonstrated that the decision to agree that the Applicant was entitled to three months' termination of employment was taken by the Personnel Subcommittee meeting of 28 November 2001. There was before the Tribunal, and there is before us, a Minute of that Committee of that date, item 5 of which is headed "Termination of Employment" and reads:
"Agreed Director should have 3 months notice of leave and all remaining employees 1 month. Helen to change standard contract."
And then under the "Action" require "Helen to change standard contract".[14]It is argued by Mr Clement that this is a perverse finding and he seeks in support of this to rely on a chart showing the hierarchy of committees. It is right to say that the Executive Committee is on the hierarchy and that the Personnel Subcommittee is one step down in that hierarchy. There is absolutely nothing in that document to suggest what the respective powers of these various committees are.[15]The Tribunal dealt with this in paragraph 60 of its Decision. They rely, in support of their conclusion that she was entitled to three months' notice, on what they describe as "The minutes of the executive committee" which showed that the Respondent and the Applicant were to give three months' notice. It is right to say that the document to which we have been referred, was not a document containing Minutes of the Executive Committee, but, rather was of the Personnel Subcommittee. It is clear to us that that is really no more than a slip on the part of the Tribunal. It is plain that they were relying on relevant minutes, those were the relevant minutes and, in our judgment, it would be taking a fine tooth comb to this Decision were we to conclude that this erroneous slip demonstrates an error of law or perversity on the part of the Tribunal. Therefore, once again, there is nothing in this point.[16]Ground three is also a new point. It is that the Tribunal erred in law, or was perverse, in drawing adverse inferences against the Respondent arising out of the actions of Ms Poinen. She was a person whom the Tribunal found had made a number of derogatory statements in the presence of, or about, the Applicant. The Tribunal stated in paragraph 15 that "Ms Poinen is of African or African Caribbean origin", and at paragraph 58 drew adverse inferences against the Respondent from comments alleged to have been made by Ms Poinen about Indians. The Appellant says that the Tribunal was perverse in drawing such adverse inferences because it is asserted that Ms Poinen is of Indian ethnicity. The basis for this said to be paragraph 13A of the ET3 which reads:
"Pat Poinen is a Christian, originates from Trinidad, of Indian ethnicity and is widowed since 1993 and never remarried."
Whilst that, of course, is what the Respondents put forward in their ET3, it is not necessarily what the evidence was and there is no basis, in our judgment, as a matter of substance, for concluding that the Tribunal were perverse in making the finding of fact that they did on the evidence and the documentation which was before them. In any event, as we have indicated, this is a novel point, not raised below and not one which we should entertain whatever its substantive merits.[17]Grounds four, five and six of the appeal raise a series of points which really run to this, that the Tribunal was perverse in finding racial discrimination arising from various comments made either about the Applicant, or in her presence. Her case was, and the Tribunal found, that there was discrimination because she was a Sikh. First, it is said that this is a perverse conclusion because the Tribunal relies on things that were said in her presence as well as, in some instances, things that were said directly to or about her in her presence.[18]Secondly, as far as one particular finding of fact is concerned, the use of the phrase "Sikh bitch" to her - it is said that such evidence does not support a finding of racial discrimination but sexual discrimination, which was not the claim being made by the Applicant. Thirdly, it is said that the Tribunal was perverse in using comments about India or Indians in support of their finding that the Applicant suffered racial discrimination because she was a Sikh. The point made by the Appellant is that not all Indians are Sikhs and not all Sikhs are Indians. It seems to us that that is taking an unrealistic fine tooth comb to a decision of this sort.[19]As Mr Legard says it is one of the features of this kind of case, and this kind of complaint, that it is seldom that one finds direct racially abusive language being used to a complainant; Tribunals are well used to looking at the entire body of the evidence and drawing such inferences as appear to them to be proper, both as to the nature of the conduct and the cause of it. In our judgment, the evidence as found by the Tribunal in this case constituted an overwhelming case that the Applicant was the subject of continuing intimidation, humiliation, and hostility, the root cause of which was her ethnicity. They were perfectly entitled to come to that conclusion, relying as they did on the evidence that they heard of a whole series of matters emanating from a number of individuals in positions of authority. As far as the use of the phrase "Sikh bitch" is concerned, it seems to us to be ludicrous to suggest that you can so separate out the two elements so as to say that that is essentially a matter of sexual discrimination not racial discrimination, particularly in the context in which it was used in this case. Therefore, in our judgment, there is no basis upon which any of the grounds, four, five and six, which allege perversity, can be regarded as established and we reject them.[20]Ground seven picks up a particular phrase in paragraph 57 of the Decision. The Tribunal said:
"The Tribunal has to accept the evidence of the applicant as this is the only evidence that we have heard. The only evidence that we have on behalf of the respondents is that contained in the documentation, produced by the applicant, and the answers to the race discrimination questionnaires. We therefore accept the evidence of the applicant as set out in findings of fact in this decision."
It is said that the Tribunal by the use of phrase "has to accept" has directed itself erroneously as a matter of law that, in a case where there is no evidence from a respondent and no challenge to the applicant's evidence, they must accept her evidence as truthful. If they were saying that, then we accept that would be a misdirection of law. They are bound to consider whether the applicant has satisfied them of discrimination. As they reminded themselves in 42(b) the Tribunal had to determine whether it accepted: " on the balance of probabilities the evidence of the applicant and his or her witnesses, if not the claim fails".[21]In the light of that express and clear statement of what they had to do, in our judgment, it is unrealistic to suggest that in using a phrase such as "has to accept" they were entirely countermanding that previous correct statement of the law. In our judgment, that was simply a turn of phrase which is being seized on as raising a point on appeal which, in reality, is of no merit.[22]Ground eight is a new ground and therefore, in our judgment, we ought not to consider it. In any event it is, in our judgment, a ground entirely without substance. It concerns the complaint of victimisation. The Tribunal dealt with this in paragraph 59 of its Decision. They say this:
"The applicant raised a grievance claiming race discrimination. As soon as that grievance was raised a plan was set to terminate the applicant's employment. Her letter of 14 February is a protected act within section 2. It can be deduced from the evidence that the respondents considered that they needed to terminate the applicant's employment because she was raising complaints of race discrimination against them and to do so as quickly as possible."
And on that basis they concluded that she:
"was dismissed because she had raised a grievance claiming race discrimination, a protected act, and was accordingly victimised under section 2."
[23]Ground eight, insofar as we understand it, seeks to argue that the letter of 14 February was not a protected act because it seems to make suggestions as to how the business of the Appellant might better be conducted. Whilst it is certainly true to say that in that extremely lengthy letter there is a summary of conclusions which contain certain positive suggestions, there is no doubt that much of the text contains a detailed complaint as to the way in which she was being treated and, in a number of respects, asserting racist conduct towards her. Plainly it was a letter which was regarded by the recipient, the Chief Officer of the Appellant, as constituting a grievance, or containing a grievance because within a few days of its receipt, on 19 February, he wrote to the Applicant "Secondly, although you have not used the word, it appears to me that the matters you have raised in your letter are in effect a 'grievance'. As you know there is a Grievance Procedure laid down in the Red Book. I will be grateful if you will confirm in writing that you wish your letter to be treated as the start of this Procedure."[24]The Applicant did so and, accordingly, a grievance went forward. It is clear that from the outset the Appellant recognised that, in effect, this was a grievance, and that the Applicant was making complaints of the way in which she was being treated. We have been reminded that the test of whether there is victimisation is a subjective one: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? The Tribunal, in concluding that she was dismissed because she was raising complaints of race discrimination, applied the test set out in the case of Khan . They had reminded themselves that that was the relevant authority and therefore, in our judgment, there is no perversity in the characterisation by the Tribunal of the letter of 14 February, nor was there any erroneous approach in the test which they applied.[25]Ground nine of the original Notice of Appeal raised a point which was, on its face, a good one because it contrasted the conclusion of the Tribunal, at the end of paragraph 63, where it awarded £2000 for injury to feelings, with the schedule of loss and damages prepared by the Tribunal in which it recorded injury to feelings as £10,000. The Tribunal Chairman was invited to consider that matter, amongst others, and on 1 December last year issued a corrected decision to correct the clerical mistake at the end of paragraph 63, substituting £10,000 for £2,000. Therefore that ground, although initially a good one, has been abandoned by Mr Clement as subsequently there has been a correcting clarification.[26]Ground ten attacks the conclusion of the Tribunal that an award of aggravated damages should be made. The allegation effectively is that the Tribunal failed to make the findings which were necessary in order to establish the aggravated damages. The Tribunal, in paragraph 51 of the Decision, reminded themselves of the legal requirements as follows:
"Aggravated damages can be awarded by the Tribunal if the respondent has behaved in the high handed malicious insulting or oppressive manner in committing the act of discrimination. The Tribunal is entitled to have regard to the behaviour of the employer following the act of discrimination. Conduct, in the course of litigation, may also be taken into account in assessing the degree in which a person has suffered injury to feeling and where there has been an aggravating feature."
Thus the Tribunal set out and reminded themselves of the appropriate factors. In paragraph 64 the Tribunal dealt with the application as follows:
"The applicant has been unable to have fully vented before this Tribunal the factual situation which existed when she was director of the respondents. She has been unable to test her evidence against that of the respondents and to show that the respondents evidence was completely unfounded. This has saddened her and she finds it anti-climatic. She wanted to face the allegations fully but the respondents have not allowed her to do so. The respondents failed to participate in these proceedings. They failed to provide any witness statements. They failed to attend the hearing except by Mr Lindsay who merely applied for a postponement. This is an organisation that are publicly funded to help those who have been racially discriminated against to obtain redress in the Courts and in the Employment Tribunals. They are fully aware of the requirements that an Employment Tribunal has in respect of discrimination claims, what needs to be done to prepare for them and what evidence needs to be adduced"
It then goes on:
" It appears that the respondents did take some legal advice. We do not know whether they persisted in defending the case on or against legal advice. The respondents have shown no courtesy to the applicant or to this Tribunal. Then in paragraph 65 it says: "
The treatment of the respondent by demeaning her, undermining her, contradicting her decisions as director of the respondent was over a period from the start of her employment until the termination of her employment. In short they treated the applicant with total disregard. We therefore consider that aggravated damages of £2,000,00 should be awarded."[27]In our judgment there can be no criticism whatsoever levelled against this Tribunal for firstly reminding themselves of the circumstances in which it is appropriate to award aggravated damages; secondly, in addressing, as a matter of substance, the factors which in this case were appropriate to be considered; and thirdly, in coming to a conclusion, which it were reasonably entitled to come to, in deciding to award aggravated damages and to award them at the relatively modest scale of £2000. Therefore we reject this ground of appeal.[28]Ground eleven is a good ground of appeal because it points out that the Tribunal, in calculating the compensation for discrimination and victimisation has awarded compensation for a period for which it has also awarded compensation to the Applicant in respect of the breach of contract claim, that is to say for the second and third months of the three months' notice period to which they had concluded the Applicant was entitled. In the calculation it has included that sum twice.[29]The parties are agreed that that was a mistake. They are also agreed that the total sum over-awarded by the Tribunal is £3,257.80 plus £473.40 in respect of pension contributions. The parties are indifferent whether that comes off the amount awarded pursuant to the discrimination and victimisation claim, or comes off the breach of contract claim, it is a matter of administrative convenience. It seems to us right that it should come off the breach of contract claim, which is to be found at page 21 of the bundle. Ground twelve we will deal with in a moment, because it concerns costs.[30]Ground thirteen concerns the conclusion that the Applicant was not paid holiday pay that had accrued and that she had not taken. She was awarded £751.80. Mr Clement has indicated to us that he really has nothing to say on this, in addition to that which is contained in the grounds of appeal and in the Skeleton Argument. It seems to us that this is a realistic assessment because there really is nothing for him to say; there is no evidence upon which he can rely which was before the Tribunal, by reason of which he can attack this conclusion, and therefore we reject that particular ground of appeal.[31]Ground fourteen was added this morning. It follows from the correction by the Tribunal Chairman of the typographical error in paragraph 63 where he substituted £10,000 in respect of injury to feelings, instead of the £2000 which appears in the original version. The ground of appeal is an attack based on perversity to the effect that no reasonable Tribunal could have concluded that the circumstances described could fall within the middle band of seriousness, so as to attract a measure of compensation under this head of £10,000. We have already indicated the way in which the Tribunal addressed this issue in paragraph 51, and the way in which, in paragraph 63 it addressed the question. It says this:
"It is clear from those findings of fact that the applicant has suffered a profound personal effect because of the way that she was treated. That has not only affected her but it has also affected her family and by affecting her family has increased the burden on her. She has had to move away from the north east where she has friends. She has left the type of job which she was accustomed to and which she enjoyed. She now been denied a job which utilised her skills fully. The respondents were aware that at the time of the treatment of the applicant her brother had died and obviously this also affected her. It has affected her professionally. The treatment of the applicant and the attitude of the executive committee to the applicant was unprofessional as well as being racial discriminatory. The applicant will no doubt have to, for future employment, explain her dismissal by a Race Equality Council which is there to promote racial harmony. This may be a difficult task for the applicant. The treatment of the applicant continued throughout her employment. It was persistent and sustained."
[32]This passage may be compared with paragraph 51 in which the Tribunal contrasted the middle band, which should be used for serious cases which do not merit the higher award, to the lower band which is appropriate for less serious cases such as an isolated act of discrimination or a one-off occurrence. In our judgment, the Tribunal, in awarding £10,000 and in rejecting the submission made by Mr Legard that injury to feelings should fall at the top end of the middle band case, namely £15,000, came to a decision having regard to the principles enunciated in Vento -v- The Chief Constable of West Yorkshire [2002] EWCA Civ 1871 and we can see no basis for overturning that decision. We therefore reject that ground of appeal.[33]That leaves us with costs. The Tribunal awarded the Applicant her costs. It did so on the basis of what it stated at paragraph 66 of the Decision, having gone into the way in which the Respondents conducted themselves in connection with the Tribunal hearing. It was, in our judgment, wholly unsurprising that the Tribunal concluded that the Respondents had acted totally unreasonably in the conduct of these proceedings. They had failed to comply with directions and had failed to adduce any evidence. It was totally unnecessary for these proceedings to have continued, as proceedings which were substantively opposed. Therefore, as a matter of legal principle, the Tribunal, having reminded itself in paragraph 54 of its powers to award costs, and of the cases which set out the process of reasoning to be followed, was perfectly entitled to order the Respondents below to pay the Applicant's costs.[34]A point which has been raised by Mr Clement in his grounds of appeal, which he has developed in argument today, concerns the role of the trade union as the funder of Applicant's claim. In paragraph 66, as one of the matters which it took into account, the Tribunal said this:
"We are informed that the applicant's union has been put to a considerable amount of expense "
Had that resulted in an Order that the Appellant should pay the union's expenses, then we can see that Mr Clement would have justifiable cause for complaint. However, the Order of the Tribunal was not in those terms. The Order was that the Respondents were ordered to pay the Applicant's costs, such costs to be subject to a detailed assessment if not agreed. What we understand that means is as follows: the Applicant had the benefit of solicitors and Counsel representing her. She was their client and, therefore, in strict legal theory, their fees were due from her. However, as is commonplace, whenever a trade union or an insurance company is involved, ultimately those costs are guaranteed to be paid by the funding body with whom the Applicant or the Respondent has a contractual relationship. In terms of the trade union it will be a relationship of membership of the union. In terms of non-trade union cases, it may be by way of legal expenses insurance. Effectively, therefore, although the legal representatives can, in theory, look ultimately to the client, in practice they will look to the insuring or the funding body, the trade union or the insurance company.[35]In those circumstances, it makes entirely good sense and good law, and is in accordance with daily practice in the Civil Courts, for an Order to be made that one party pay the other party's costs in the knowledge that that will, in effect, mean reimbursing a third party for the sums which otherwise they would have to pay out to the legal representatives. That is the form of the Order, and that is what we understand the Order to cover. It is plain that it was not an Order which was intended purely to cover the Applicant's costs over and above those for which the trade union would stand as the ultimate guarantor. They would have been negligible. The point about the union having incurred expenditure is simply a reflection of the fact that the Tribunal knew that the union was backing this case, and was ultimately the guarantor that the solicitors and Counsel appearing for the Applicant would receive their fees. This was a substantive Order for costs triggered by the unreasonable conduct, as the Tribunal found it, of the Respondent.[36]We would want to make it clear, of course, however, that, had there not been an award of costs, the lay applicant would undoubtedly have been protected against ultimately having to pay her legal representatives' costs by virtue of the contract of membership with the trade union.[37]In our judgment, therefore, there was nothing untoward in the Tribunal, having made its findings as to unreasonableness, making the Order in this form in the knowledge that the union would ultimately have been the paymaster of the legal representation of the Applicant, as her agent, pursuant to the contract of membership which she had with them.[38]Therefore it follows that the appeal on all of those grounds which we have indicated are not good will be dismissed. There are some limited grounds in respect of remedies, which we have concluded are good grounds, and to that extent the appeal will succeed.[39]There is, in addition, a point which is not raised in any of the grounds, but upon which the parties are agreed and that is in the Schedule of Calculation of Loss and Damages, there is an arithmetical mistake, as a result of which the total award in respect of discrimination and victimisation should be reduced from £30,395.9 to £28,395.9. That is a reduction of £2000 in respect of that head, and is, of course, independent of, and separate from, the reduction in the breach of contract claim, to which we have already referred in the sums of £3,257.80 and £473.40.[40]Therefore, to that limited extent, the appeal succeeds. We will dismiss the cross appeal on abandonment.[41]This is a case in which there were fourteen grounds of appeal, two of them were successful, one of them resulted in a correction by the Tribunal. In addition there has emerged in the course of today a further point upon which the appeal has succeeded. The Order for costs below was on the basis of the manifestly outrageous conduct of the Respondent in simply failing to co-operate with the hearing. That cannot be said today, when the Appellant has attended and has been ably represented. In those circumstances, we do not think this is a case in which the high hurdle has been surmounted which would entitle us to make any award for costs on the appeal, and therefore we do not find Mr Legard's application for costs of today made out. Therefore there will be no Order for costs on the appeal.