HARDY & HANSONS PLC v MS L LAX [2005] UKEAT 0700_04_2811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0700_04_2811Case No Appeal No. UKEAT/0700/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HARDY & HANSONS PLCAPPELLANTMS L LAXRESPONDENT
Before
Mr Justice BurtonDate 28 November 2005
[1]APPEARANCES For the Appellant MR J COPPEL (of Counsel) Instructed by: Messrs Browne Jacobson Solicitors 44 Castle Gate Nottingham Notts NG1 7BJ For the Respondent MR D MASSARELLA (of Counsel) Instructed by: Messrs Richard Hutchinson & Co Solicitors 9 College Street Nottingham NG1 5AQ SUMMARY Sex Discrimination: Injury to Feelings & Other Losses In the light of the finding at the liability hearing, upheld by the CA, that the Claimant should have been offered the opportunity to take the new post (after redundancy in respect of her old post during her maternity leave) on a job-share basis, the ET did not err in not discounting compensation on a loss of a chance basis. ET however erred in awarding £14,000 for injury to feelings, which took into account irrelevant factors and was excessive (some attention being paid to the EOR guide of similar cases which, if adopted with caution, is a useful document) and was (conservatively, because of the exercise of substitution which was adopted at the invitation of the parties instead of remission) substituted by £10,000. THE HONOURABLE MR JUSTICE BURTON This has been the hearing of an appeal by the Respondent, Hardy & Hansons Plc, against the remedy decision of the Employment Tribunal, sitting at Nottingham, with regard to the quantification of the claim by Mrs Lax, the Claimant, which it had previously found in her favour by an earlier liability decision. The liability decision was, after a hearing in November 2003 and January 2004, given in Reasons handed down to the parties on 29 March 2004. The remedies decision was given after a hearing on 9 July 2004, in Reasons sent to the parties on 20 July 2004.[2]As we have indicated, this is an appeal against the remedies decision. The liability decision was itself appealed, and that appeal came before the Employment Appeal Tribunal in September 2004, on a preliminary hearing, when it was dismissed by a panel chaired by HHJ Prophet. That decision by the Employment Appeal Tribunal was then appealed by the Respondent to the Court of Appeal, and, in a judgment now reported at [2005] IRLR 726 , handed down on 7 July 2005, the Court of Appeal (the lead judgment being given by Pill LJ) dismissed the Respondent's appeal. It is for that reason that this appeal against the remedy decision ought now to be categorised as Hardy & Hansons Plc v Lax No. 2 .[3]The basis of the appeal against the remedies decision was effectively two-fold. The first was an attack on the Employment Tribunal's approach to the quantification of future loss. The second was an attack on the finding in relation to injury to feelings. There was a secondary argument relating to the recoverability of the cost of course fees but, in the event, that became subsumed under the second ground, and did not go forward as an independent ground of itself.[4]We shall deal first with the future loss argument. The issue has been raised by Mr Jason Coppel of Counsel (who did not appear at either the liability or remedies hearing, but appeared, led by Mr Andrew Clarke QC, in the Court of Appeal) and resisted by Mr David Massarella who, similarly, did not appear at either the liability or the remedies hearing and was led by Mr Langstaff QC (as he then was) in the Court of Appeal. Both these two expert Counsel have not, therefore, come entirely fresh to the case, but neither had any involvement in either of the two Tribunal hearings.[5]The issue on future loss is whether the Employment Tribunal, in the remedies decision, was entitled to make the findings it did in paragraphs 7 and 8 of its Remedies Judgment (to which we shall refer) after hearing the submissions of the solicitors, Mr Hutchinson and Mr Benson, for their respective parties, as set out in paragraphs 5 and 6 of the Remedies Judgment (to which we shall also return).[6]The facts of this case can be briefly summarised. Mrs Lax, the Claimant, had been a successful employee of the Respondent, latterly in the position of Retail Recruitment Manager, shortened at all times, it seems, to RRM. In the light of her impending departure on maternity leave, she sought the agreement of the Respondent to make the RRM job a job which could be carried out by her on either a part-time basis or a job share; and the Respondent refused, after a request in March 2002, in May 2002. There was thus a period of uncertainty and/or dispute between March and May 2002. After the refusal, the Claimant went off on maternity leave in July 2002, knowing that she was coming back to a full-time job, contrary to her request.[7]The case that was put forward at the Tribunal, and which was successful, was that the refusal by the Respondent amounted to sex discrimination, contrary to the Sex Discrimination Act 1975 , by virtue of the imposition of the requirement that the job be carried out on a full-time basis. The conclusion of the Tribunal is set out in paragraph 13 of the Liability Judgment: "The Tribunal accepted Mr Webster's evidence that as a relatively small employer in the industry the respondent had constantly to look for competitive advantage. It understood that companies like the Wolverhampton and Dudley Brewery did not have a job share for the RRM post. He genuinely believed that there was a need to have an efficient and competitive recruitment process. However, the Tribunal decided that the matters relied upon as justification did not outweigh the serious impact of the effect of the application of the provision to the applicant. This operated to her detriment in that she was unable to continue in employment. An efficient and competitive process could have been maintained if the RRM job had been done on a job share basis. Accordingly, the Tribunal decided that the applicant's complaint that the respondent's failure in May 2002 to permit the applicant to do the recruitment manager job either on a job share or part time basis on her return to work from maternity leave constituted unlawful sex discrimination under the provisions of section 1(2) of the 1975 Act".[8]The circumstances, while she was absent on maternity leave, were then that, in December 2002, the Respondent concluded that the RRM job was redundant, and they so notified the Claimant. The Tribunal found that there was indeed a genuine redundancy in the sense (see paragraph 14 of the Liability Judgment) that there was a diminution in the Respondent's requirements for an employee to carry out the RRM work, and, in those circumstances, the Tribunal concluded, in paragraph 16, that in December 2002 it was not practicable, by reason of redundancy, for the Respondent to continue to employ the Claimant under her existing contract of employment, namely as an RRM working on a full-time basis.[9]What the Respondent decided to do was to replace the RRM job with a new role of TSM, Tenanted Support Manager, which would subsume the work done by the former RRM, but add on additional training and other roles, which would make the new TSM job a full-time job; and it was apparent that the lady who had been interviewed in May 2002 for the job of temporary replacement RRM while the Claimant was on maternity leave (a Mrs Hicklin) was ideally able to fulfil the new job of TSM. She had plainly fulfilled the temporary replacement job well but, in addition, she had qualifications and experience for the new additional parts of the TSM job which the Claimant did not have and, indeed, did not and does not suggest that she had.[10]The question then arose as to what to do about the TSM job. The Claimant was keen to return from maternity leave into the new job as TSM, but just as she had previously wished that the RRM be acceptable on a part-time or job share basis, so she requested and required that the TSM job also be carried out on the same basis and the Respondent refused. The Tribunal concluded that the refusal to offer the opportunity to the Claimant to do the TSM job on a part-time or job share basis was discriminatory. This was dealt with in a number of paragraphs in the conclusory part of the Liability Judgment. It first of all arose in paragraph 16 when, having concluded, as we have earlier quoted, that there was a genuine redundancy, the Tribunal recorded the submission of Mr Hutchinson, the solicitor for the Claimant, that, in these circumstances, the Claimant was entitled to be offered alternative employment, namely the "RRM job on a part-time basis or a job share in the TSM job".[11]The Tribunal rejected that submission, for reasons it sets out in paragraph 16, by reference to its construction of Regulation 10(3)(b) of the Maternity & Parental Leave Regulations 1999 . Regulation 10(3) requires that where, during an employee's ordinary or additional material period, it is not practicable by reason of redundancy for the employer to continue to employ her under an existing contract of employment, then there is no breach of the Regulations if there is a suitable available vacancy and a new contract of employment is offered, such that "work to be done under it is of the kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances" and (b) "its provisions as to the capacity and place in which she is to be employed and as to the other terms and conditions of her employment are not substantially less favourable to her than if she had continued to be employed under the previous contract". The Tribunal concluded that, since the alternative employment, which the Claimant's own solicitor was urging should have been offered, was less favourable, even though it was employment that she would have wished to have accepted, and, indeed, as the Tribunal found, would have accepted, it did not fall within Regulation 10(3)(b) and, consequently, that the Regulations could not be relied upon. This was the subject of a cross-appeal by the Claimant to the Court of Appeal which, in the event (because the Court of Appeal otherwise found in favour of the Claimant) was not pursued or dealt with by the Court of Appeal. It was on the basis of a finding that Regulation 10(3)(b) did not apply that the Tribunal concluded at the end of paragraph 16:
"The respondent was not obliged to offer her employment which was substantially less favourable in terms of hours and pay, notwithstanding the fact that the applicant would have accepted that offer"
. It appears to us that that is, in fact, a finding that the Applicant would have accepted the offer but, in any event, it is plain from all the evidence and reasoning that we have seen, that the Claimant would, indeed, have been only too keen to accept the offer, because that is what she had been seeking.[12]Having decided that the 1999 Regulations did not apply, the Tribunal then turned to consider the question so far as the Sex Discrimination Act 1975 was concerned, it made its finding in paragraph 17 of the Liability Judgment that the Respondent applied a provision to the Applicant that the RRM job had to be incorporated into the TSM job which had to be done on a full-time basis by one person, and that this was a provision subject to the Act; and it turned then to the question of justification in paragraph 18 of its judgment, which reads as follows:
"The Tribunal again considered the guidance in Alllonby when it approached the issue of justification. It accepted that the TSM job could not be done on a part time basis and that the RRM functions had to be incorporated into the TSM job. There was insufficient work for the respondent to employ a part time RRM and a full time TSM. However, the Tribunal decided that the TSM job could have been done by two job sharers or by two part time workers. It did not accept that the TSM job comprised certain functions which were incapable of being split between two job sharers. It accepted Ms Hicklin's evidence as to how she undertook her functions in the TSM role, but it did not accept that this was the only efficient way in which they could be performed. The respondent never discussed how the applicant's willingness to work flexibly might be exploited to ensure that the TSM role was efficiently performed. As soon as Mr Webster became aware that the RRM job comprised only two days work a week, he should have consulted the applicant as to how the TSM role should be designed. There was more than a suspicion that the TSM role was designed with Ms Hicklin in mind. The Tribunal was in no doubt that if the Applicant had been kept in mind, the TSM role could have been devised so as to allow for two employees (including the applicant) to perform it on a job share basis…"
The Tribunal's conclusion was that the Claimant's complaint that the Respondent's failure to offer her an opportunity to do the TSM job on a job share basis constituted unlawful sex discrimination was well-founded.[13]It then turned to consider dismissal and referred, of course, to the earlier finding as to there being a genuine redundancy. But in paragraph 21 it set out its conclusion that there was unfair dismissal: "The potentially fair reason of redundancy was tainted by the unlawful discrimination. The conclusion that the respondent had unlawfully discriminated against the applicant by insisting that the TSM job be performed on a full-time basis led inevitably to the further conclusion that it was unfair to dismiss her. The respondent should have offered the applicant the opportunity of doing the TSM job on a job share or part time basis. Its failure to do so was unreasonable". and then at paragraph 22 it also dealt with a subsidiary point that it was unfair not to allow the Claimant to return to her RRM job on a part-time basis until 28 April 2003 when, it seems, the TSM job took over.[14]The Tribunal's decision was obviously difficult for the Respondent to accept. On any commercial basis, the sensible course for the Respondent was to employ as TSM Ms Hicklin, who had been doing the RRM job as a substitute for the Claimant satisfactorily, if not more so, and had the qualities and the qualifications to do the TSM job which the Claimant did not. Commercially, plainly for the reasons that Mr Webster had explained, it made sense for the Respondent to have one person, particularly when there was one person, namely Ms Hicklin, available. In those circumstances it is not surprising that the Appellant appealed to the Court of Appeal.[15]By the time the case came on in the Court of Appeal in July 2005, there had not only been the liability decision but also the remedies decision, for the remedies hearing had gone ahead, as very often they do, irrespective of and subject to, the outcome of the appeal. The Court of Appeal will therefore have known or, alternatively, the parties were in a position to inform them, if they did not, what the outcome of the remedies hearing had been, and before we consider the judgment of the Court of Appeal, we should therefore consider the remedies decision, and the basis of the challenge to the remedies decision which is now before us.[16]The same Tribunal, of course relying on the findings it had previously made, made findings of fact in paragraph 4 of the Remedies Judgment which, of course, largely related to what had occurred thereafter, and to the compensation which it was addressing. But the issue which is now before us was, very briefly, approached in the submissions of the solicitors. In paragraph 5 Mr Hutchinson is recorded as submitting that there was "only a remote possibility" that the Claimant would not have continued in employment if the Respondent had not acted unlawfully. Then he went on to deal with how many days a week she would have worked if she had worked on the job share basis, and he submitted 3 days a week as the basis for her future loss claim.[17]Paragraph 6 records Mr Benson, the solicitor for the Respondent, as submitting that there was a genuine redundancy situation in January 2003 and, of course, he had the benefit of the finding of the Tribunal to that effect already. It was reasonable for the Respondent to combine the Claimant's job with other roles in order to support tenants - there was no need for him to have said that because that was again an inevitable consequence of the Tribunal's earlier decision – and then he said this "It was highly unlikely that the Applicant would have been offered that new job" and he continued "If a job had been offered, it would have been for 2½ days a week" and that was the period that was adopted by the Tribunal.[18]It is not clear what the basis was for those two rival submissions. Mr Hutchinson and Mr Benson are not before us and Mr Coppel and Mr Massarella have done their best to expatiate upon them. Mr Massarella suggests that Mr Hutchinson, addressing the "remote possibility", might have had in mind only the possibility of some kind of unexpected ill-health because, so far as he is concerned, as will appear, the inevitable consequence of the earlier liability finding was that this job should have been offered to, and would have been accepted by, the Claimant. Mr Benson's submissions were "It was highly unlikely that the Applicant would have been offered that new job". Mr Coppel has suggested that what he was submitting was that there was simply a percentage chance and, on his case, a low percentage chance, of the offer of the new job to the Claimant. It is important to make the point immediately that Mr Webster did not give evidence at the remedies hearing. Indeed, no one for the Respondent gave any evidence for the purposes of the remedies decision. The evidence that was given was only given at the liability hearing. The conclusion by the Tribunal was in paragraphs 7 and 8, and it was as follows:
"In the Decision on liability the Tribunal decided that the Respondent's refusal in May 2002 to grant the Applicant's request to job share the Retail Recruitment Manager job, ('the RRM job'), or to do it on a part-time basis on her return to work after maternity leave constituted unlawful sex discrimination. The Tribunal accepted Mr Hutchinson's submission that but for the unlawful discrimination the Respondent would have agreed to the request in May 2002". and then the following sentences are constructed on the basis of the use of the aorist tense, but Mr Massarella submits, and we tend to agree, that what was intended was the use of the past conditional, and we shall alter the reading of the paragraph accordingly. "7. The Applicant [would have] started maternity leave with the prospect of returning to her job in March 2003. In December 2002, the Respondent [would have] realised that the RRM job only comprised 2-3 days each week. Since the Respondent would have already agreed that the Applicant should return on part-time hours, there was no redundancy situation. There [would still have been] a requirement for the Applicant to carry out the RRM duties. The Respondent's decision to provide more support to the tenants did not have to impact on the Applicant at all"
. Then the conclusion:
"The Tribunal decided that there was no reason why the Applicant would not have been employed either in the RRM job or alternatively in a discrete part of the new TSM job. In its liability Decision the Tribunal was in no doubt that, if the Applicant had been kept in mind at this time, the TSM role could have been devised so as to allow two employees (including the Applicant) to perform on a job-share basis (see paragraph 18). 8. Accordingly, the Tribunal decided that the Applicant would in fact have been offered and she would have accepted the TSM post on a part-time basis."
It then calculates the future loss on the basis of loss of employment on the basis of a 2½ day week in that position for a limited period, to which we shall return.[19]That result, then, in which the consequence of the Tribunal's earlier decision in the liability hearing was turned into a certainty of loss at the remedies hearing, was known in July 2004, well before the appeal hearing in July 2005. It does not appear from the judgment of the Court of Appeal that the Court of Appeal was invited to take, or if invited, accepted the invitation to take, into account that consequence, and there is nothing in the Court of Appeal's judgment, to which we will briefly turn, which either in any way assists Mr Coppel in putting forward this appeal - by way of indication from the Court of Appeal as to how a remedies appeal could or should be addressed - or leaves open any gateway for him to dispute the clear finding of the Court of Appeal that the decision on the liability hearing, whatever its consequence, fell to be upheld.[20]In paragraph 10 of Pill LJ's judgment, he recorded that the Employment Tribunal had accepted that the TSM job could not be done on a part-time basis and that the RRM functions had to be incorporated into the TSM job and that there was insufficient work for the Respondent to employ a part-time RRM and a full-time TSM.[21]In paragraph 13 he recorded that the parties had rightly, in his view, concentrated upon the central question whether the refusal to permit job share of a full-time job amounted to unlawful indirect sex discrimination.[22]At paragraph 15 he records that the similarity for material purposes between the two jobs, RRM and TSM, including the incorporation of part of the former RRM job into the TSM job, meant that the successful party on the one issue was likely also to be successful on the other.[23]In paragraph 16, Pill LJ recorded the objections which Mr Webster had put forward before the Tribunal to the idea of job sharing, which had been primarily put forward, as far as the Tribunal's judgment is concerned, in the context of consideration of job sharing of the RRM post.[24]In paragraph 17 of Pill LJ's judgment, he says: "the TSM position was dealt with much more briefly" and he then records paragraphs 17 and 18 of the Tribunal judgment, to which we have referred above.[25]At paragraph 37, Pill LJ refers to the submissions made by Mr Langstaff and he said this: "The Tribunal's conclusion was plainly expressed. The TSM job could have been done by two job sharers or two part time workers".[26]Then he turned to consider Mr Clarke's submissions."38. The general point is made by Mr Clarke that where placements in public houses are concerned, the advantage in terms of fairness as well as efficiency of one person doing a job are obvious. It improves the prospects of the right person being allocated to the right public house. However flexible a part time employee is, difficulties remain. Mr Webster's opinion that the problems were insurmountable was entitled to respect and to dismiss it as a 'typical example of over-statement' was not a substitute for a detailed analysis of reasons given.39. While accepting the obvious link between the RRM and TSM asserted by Mr Langstaff, Mr Clarke refers to the oddity of the detailed consideration given to RRM, which it is submitted is of no practical importance, as compared with the much shorter treatment of TSM. That is confined to a single paragraph (paragraph 18) and the appellants' case is not systematically set out but interwoven with conclusions". When Mr Clarke was referring to there being no practical importance to the RRM job, it is obvious that what he meant was that there had been a finding that the RRM job was properly made redundant and, consequently, so far as effect is concerned, it revolved around the refusal to allow the TSM job to be carried out on the same basis.[27]Pill LJ records at paragraph 46 Mr Clarke's submissions that the much shorter consideration of TSM was wholly inadequate and, further, records the submission that the expression of a suspicion that the TSM role was designed with Ms Hicklin in mind and of Mr Godson's encouragement to the Respondent to apply for the job, does not contribute to a conclusion that the role could have been devised to allow job share. Pill LJ did consider that there was force in the Respondent's criticism of the Tribunal's inadequate analysis, understanding and reasoning and in particular accepted that the condemnation by the Tribunal of the Respondent's approach was "at times …. somewhat thinly supported by analysis or reasoning": and he also had misgivings which were increased by the long lapse of time between the giving of the evidence and the decision of the Tribunal (see paragraph 48). However, he came to the conclusion, with which the rest of the Court of Appeal agreed, that the decision of the Tribunal should be upheld, and he set out three reasons for that, the third of which was as follows:
"(c) The comparatively brief treatment of the major new elements in TSM is surprising, but the [Respondent's] case is being concentrated before this Court, as before the Tribunal, on the RRM elements in the job. In his written statement, Mr Godson did make reference, albeit quite brief, to the new elements. Mr Crabbe made none. The tribunal's assessment of Ms Hicklin's evidence was important in this context because she became TSM. The tribunal expressed a conclusion about it in paragraph 18. The [Respondent's] stress on the RRM elements makes the Tribunal's approach understandable. If the [Respondent] had considered the substantial new elements to be decisive, I would have expected much greater emphasis to be placed on that aspect of their case. The tribunal was entitled to reach the same conclusion on TSM as it had reached on RRM."
[28]One of the criticisms that Mr Coppel makes of the remedies decision is by reference to the apparent adoption by the Court of Appeal of the submission by Mr Clarke QC, that the RRM decision was of no significant effect when the remedies decision had, as is clear in paragraph 7 of the Remedies Judgment, to which we have referred, in fact relied on the RRM decision in reconstructing the position historically, on the hypothetical basis that a non-discriminatory decision on the RRM would have had consequences on the TSM job. If there was to be a criticism of that approach, it is surprising that that was not addressed before the Court of Appeal, when the point that the RRM decision was of no significant effect was being made; and one would have expected the point, if it was a relevant one, to be put forward forcefully that, in fact, it would appear from the Remedies Judgment that the RRM job decision had had some significant effect. But we are satisfied that it did not have any significant effect, and that that is an unfounded criticism. It is plain from paragraph 7 of the Remedies Judgment that the hypothetical reconstruction is only part of the thinking of the Tribunal, based, as it is, on the Liability Judgment. It is a back up to its conclusion, in that paragraph, that there was no reason why the Claimant would not have been employed either in the RRM job or alternatively, in a discrete part of the new TSM job. That could be arrived at by the hypothetical reconstruction that was put forward, that if there had not been discriminatory conduct with relation to the RRM decision, then the RRM job would itself have become a part-time job, would thus not have been redundant, and any appointment of a TSM would have had to have taken into account the continuing existence of the part-time RRM job. But that, it is quite plain, is only part of the thinking of the Tribunal. The more important aspect is the conclusion, to which we have referred several times, in the Liability Judgment, to which we now return.[29]What is said by Mr Coppel is that the approach by the Tribunal in the Liability Judgment either was or ought to have been simply to find (as it did in paragraph 17) that the provision by the Respondent that the TSM job had to be done on a full-time basis by one person was discriminatory: and, consequently, that the Respondent had a blinkered approach to the selection of a person to carry out the job of TSM, and that that led to the non-appointment of the Claimant, who was applying to carry it out on a part-time or job share basis. He submits that when, in paragraph 21 of the Liability Judgment, the Tribunal concluded that that blinkering effect led inevitably to the conclusion that it was unfair to dismiss the Claimant, that was not a finding that the Claimant would inevitably been given the job, but simply that her dismissal was thus inevitably unfair. He submits that the consequence of the Tribunal's findings was, or ought to have been, only that the Respondent should have carried out the task of deciding who would take the new job of TSM unblinkered and unfettered by discriminatory pre-conceptions, and consequently, that all that the Tribunal found was that they should have considered the application by the Claimant. Consequently, he submits, that if that is all that the original Tribunal found, the remedies decision was in error in not arriving at the conclusion that, at best, there was a loss of a chance that, if the Respondent had properly considered the position, the Claimant might have got the job.[30]There are two very substantial difficulties which stand in the way of that submission. We deal first with what one might call the 'inevitability' argument. The Tribunal found, as we have indicated, in paragraph 16 of the Liability Judgment, by reference to the 1999 Regulations, that there was no obligation to offer the Claimant employment substantially less favourable. That arose solely out of the construction by the Tribunal of the Regulations. It was coupled with what we have already described, and what appears to us to be a finding, that if it had been offered, the Claimant would have accepted that offer. We entirely agree with Mr Massarella that Mr Coppel places too much reliance on that paragraph, which simply deals, wrongly as Mr Massarella would like to have submitted before the Court of Appeal, with those Regulations.[31]When, however, the Tribunal turns to deal with the Sex Discrimination Act and, more importantly, the principles of unfair dismissal in so far as they impinge upon and combine with the ordinary rules on redundancy, and the ordinary obligation for an employer to consider, and, if it is available, to offer, suitable alternative employment, the Tribunal's position was a firm one. Having referred to the fact that there was more than a suspicion that the TSM role was designed with Ms Hicklin in mind (a matter to which we will briefly return) the Tribunal said that it was in no doubt that, if the Claimant had been kept in mind, the TSM role could have been devised so as to allow two employees, including her, to perform it on a job share basis. The Tribunal's conclusion therefore was that the failure to offer the Claimant an opportunity to do the TSM job on a job share basis was unlawful sex discrimination (see paragraph 18). That is an opportunity which, if it had been offered to her, would have been accepted by the Claimant.[32]Then when it comes to unfair dismissal and redundancy, the Tribunal concludes in paragraph 21 "The respondent should have offered the applicant the opportunity of doing the TSM job on a job share or part time basis". The way in which those conclusions are expressed appears to us to be clear, namely that the opportunity should have been offered to the Claimant, when we know that that opportunity would have been taken up. Mr Coppel submits that all that should have been found was that the Respondent should have considered the possibility of the Claimant being considered for the job i.e. to have taken her into account, with all the difficulties which, commercially, her application would have presented to them of her having to carry out the job on a job share basis, in competition with any other candidates, including Ms Hicklin, who would have presented none of those difficulties.[33]It may be, submits Mr Massarella, that if that had been the position (and if, in those circumstances, the Respondent had chosen Ms Hicklin), there might have been arguments by reference to the case of Rees v Apollo Watch Repairs Ltd [1996] ICR 466, an authority which was, in fact, referred to the Employment Tribunal at that liability hearing by Mr Hutchinson. That was a case in which, while the claimant was absent on maternity leave, her replacement, as it happens a woman, was found to be more efficient and acceptable than the absent claimant and consequently, when she returned from maternity leave, she lost her job. HHJ Clark said at 470:
"We are fortified in reaching our conclusion in this case by the policy behind the legislation. The protection afforded to women on maternity leave would be drastically curtailed if an employer was able to defeat a complaint of direct discrimination by a woman who, during such absence, discovers that the employer prefers her replacement; a state of affairs which has arisen solely as a result of her pregnancy and therefore of her sex"
. Mr Coppel submits that the facts here are different from that in Rees . It was not the same job to which the Claimant would have been returning, her original job having been made properly redundant, as was found; and at the very least it would have necessitated an extension of the Rees principle. In any event, that question did not arise, and is entirely hypothetical, because that is not the approach which either party or the Tribunal took to the facts of this case. On the facts of this case, the Tribunal concluded that the Appellant should have been given the opportunity of doing the TSM job and that is, according to Mr Coppel, to be interpreted as that they should have considered the possibility of her doing the job, as an alternative to any other.[34]It is at this stage that we raise once again our surprise, as the parties already knew the consequence of the Liability and Remedies Judgments, that this inappropriate result (if Mr Coppel be right) was not drawn to the attention of the Court of Appeal and, indeed, relied upon, in what the Court of Appeal obviously found to be a difficult and borderline case in any event. The Court of Appeal does not address that distinction, if distinction it be. It might even have been a turning point in causing them to decide a different way. This is not a straightforward question; it is one which plainly gave the Court of Appeal, and gives this Tribunal, concern as to what an employer is supposed to do, where his own commercial needs so conflict with what is said to be the consequence of the legislation.[35]But such is not a matter for us. We have to decide whether what the Tribunal decided at the remedy hearing is in any way consistent with what it did find or, possibly, if Mr Coppel be right, what it should have found or be interpreted as finding. We turn then to the position at the remedies hearing. If the inevitable consequence of the Tribunal's liability decision, by virtue of the very words which we have quoted, was that all they needed to decide was whether the Claimant would have accepted the offer which it was clear that the Respondent should have made, namely to give her the opportunity of doing the job on a job share basis, then the answer was inevitable, and was, therefore, rightly made in paragraph 8 of the Remedies Judgment: "Accordingly the Tribunal decided that the Applicant would in fact have been offered and she would have accepted the TSM post on a part-time basis".[36]So much for any inevitable effect of the Liability Judgment. It does, however, appear that arguments were put forward at the Remedies Judgment on the 'loss of a chance' basis. We have already referred to what may have been the basis of those submissions. It appears to us clear therefore that, in so far as any complaint is made that there was required to be and was not consideration of the issue as to what, in the light of its earlier findings, would have happened, the Tribunal, having been addressed on the possibilities and likelihoods, firmly came to the conclusion as to what the inevitability was, never mind the possibility or likelihood.[37]Because of the concerns which we have expressed (and which indeed the Court of Appeal also plainly had), we would not wish it to be thought that this decision is, in some way, authority for the proposition that it is inevitable in any case that an employer must accept a job share where his or her commercial interests so drastically conflict with that course, certainly under the Sex Discrimination Act - we say nothing at all about the impact of the Part-Time Workers' Regulations, which were not in issue here. But it seems to us that the Respondent would have had an extremely difficult task at the remedy hearing on any basis.[38]Three matters have been put forward by Mr Coppel that the Tribunal is said not to have considered, or wrongly to have rejected, if it was to come to the conclusion it did at the remedies hearing.[39]The first is that Ms Hicklin had, and the Claimant did not have, the qualifications or experience with regard to a part of the new TSM job. That was plainly evidence that was given to the liability hearing and accepted by the Tribunal; and the answer did not lead where Mr Coppel would wish, because it led only to confirm the finding, made by the Tribunal and upheld by the Court of Appeal, that there should have been a split of the job so as to allow for those parts of the job for which the Claimant was not qualified to be dealt with by someone else, be that Ms Hicklin or some other person.[40]Secondly, in the submission of Mr Coppel, there would be the fact that job sharing in relation to a job of this kind would be extremely difficult. That is plainly a matter which, on the evidence, was put forward at the liability hearing and rejected by the Tribunal as any reason not to have proceeded, both in respect of the RRM job and the TSM job, on the basis of at least consideration, if not imposition, of a job share.[41]The third matter that he has put forward is one of some difficulty for the Respondent. We have already referred to the fact that Mr Webster did not give evidence at the remedies hearing. It appears to us that if there was to be any chance of the Respondent being able to submit that, notwithstanding that the Respondent was obliged, putting it most favourably to Mr Coppel, to consider the Claimant for the new TSM job, either on a part-time or a job share basis, there was a non-discriminatory way by which the Respondent could have nevertheless given the job full-time to Ms Hicklin, as they did, and rejected the Claimant, such submission would have to have been supported, in our judgment, by Mr Webster or someone on behalf of the Respondent. We find it difficult to see what Mr Webster would or could have said and, when pushed, Mr Coppel found it difficult also. He suggested that there might have been evidence that there was no one else who could do the other part of the job share with the Claimant. It is unclear to us whether there was any evidence, for example, given by Ms Hicklin, who did give evidence at the liability hearing, that she would not have been willing to have carried out only a part time job or a job share and, in the absence of any exploration of the paragraph 7 procedure in respect of notes of evidence, we must disregard that possibility; but on this hypothetical basis which we are considering, as to what might have been said by Mr Webster, that perhaps might have been put forward. Perhaps it might have been possible for Mr Webster to say that he had tried to find someone other than Ms Hicklin to fulfil the other part of the job share arrangement and had reasonably failed to do so. Once again, if that were said at the liability hearing, there is no sign of it in either of the two judgments and no paragraph 7 procedure operated.[42]This is the basis of the third suggestion that Mr Coppel makes as to how it might have been that a way through could have been found which would at least have created something better than a 0% chance for the Respondent of avoiding appointing the Claimant. Without that evidence, it appears to us that there is no alternative between a finding that the Respondent would in some way have been justified in going ahead with what commercially they plainly wanted to do, namely appoint Ms Hicklin, in which case there would be 0% chance of the Claimant taking the job, or a conclusion that, in the light of the findings, by the Tribunal upheld by the Court of Appeal, there was a 100% chance of her taking employment.[43]In those circumstances, we are entirely satisfied that, either on the basis that the Tribunal was bound to reach the conclusion it did after its earlier decision, a decision which was subsequently upheld by the Court of Appeal, or on the basis that, in so far as the Tribunal was addressing the question of loss of chance, it was wholly unperverse in reaching the conclusion that there was an inevitability that the Claimant would, in fact, have been offered and if offered, would have accepted the TSM post on a job share basis. In those circumstances, this ground of appeal is dismissed.[44]We turn to the second aspect of the appeal which is the quantum aspect. An award was made to the Claimant for injury to feelings of £14,000. In addition, incorporated in the claim for actual and future loss was the cost of the Claimant's going on a course which was, in fact, a three year course, although the Tribunal concluded that it ought to be completed in two years, and only allowed the cost of such two years. That course was commenced by the Claimant in September 2003, a year after she had the baby, and, in the circumstances, two years of attendance at that course was provided for by a sum of, it would seem, approximately £5,000, although we do not have the full breakdown out of the total sum of some £43,000 plus interest which was the agreed figure between the parties for actual and future loss resulting from the conclusions of the Tribunal.[45]Mr Coppel submitted, on appeal, that it was inappropriate for the Tribunal simpliciter to have awarded the costs of attending that course. In the course of oral argument before us, he did not in fact pursue that. There is a number of authorities, to which we do not need to refer in this judgment, which make it clear that it will be held, in an appropriate case, to be reasonable mitigation by a Claimant to delay going back to work or, indeed, even looking for alternative employment, while attending a relevant course or carrying out some kind of training which would ameliorate the consequence of an unfair dismissal or a discriminatory act, and make fresh employment the more likely and the more remunerative. The further point that builds upon that, although it is not supported by any authority which has been put before us, is that, if that indeed is appropriate mitigation, not only will a claimant not suffer any detriment by virtue of not recovering loss of earnings in that period, but it may be appropriate to recover the cost of attending that course, because of its mitigating and ameliorative effects. In those circumstances, the submission from Mr Coppel became one rather that the Tribunal did not take, or does not appear to have taken, any account, in calculating quantum, of the fact that it had, in fact, awarded, perhaps exceptionally, the sum of some £5,000 in respect of her attending a course, rather than finding alternative employment. We shall return to that aspect, but that simply explains why it comes about that this does not remain a separate ground, but is subsumed under the main ground.[46]The sum of £14,000 is, of course, a substantial sum where, as here, there was no evidence of actual damage to health and no medical report and no successful claim for aggravated damages. The leading authority is, of course, the Court of Appeal decision in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 , which is relevant for three purposes.[47]First of all, at paragraph 50, Mummery LJ described the kind of matters which can be the subject matter of compensation for injury to feelings:
"Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms"
. Secondly, in paragraph 51 Mummery LJ refers to the limited role that an appellate tribunal has in interfering with an assessment by the employment tribunal. "In these circumstances an appellate body is not to be entitled to interfere with the assessment of the employment tribunal simply because it would have awarded more or less than the tribunal has done. It has to be established that the tribunal has acted on a wrong principle of law or has misapprehended the facts or made a wholly erroneous estimate of the loss suffered. Striking the right balance between awarding too much and too little is obviously not easy".[48]Finally, in the well known passage by way of guidance in paragraph 65, Mummery LJ described the three broad bands of compensation for injury to feelings, and gave guidance in relation to them. He said as follows:
"i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence."
We have indicated that in this case, the Tribunal awarded £14,000 which is only slightly short of the top of the middle band.[49]So far as its findings are concerned - and the Tribunal had, as Mr Massarella reminds us, heard the matter itself at the liability hearing over the period of some four or five days and then had a one day hearing on remedy, and we have not, of course, seen the witnesses at all - the Tribunal said this: "4.5 ….the Applicant had experienced a stressful and traumatic time as a result of the Respondent's unlawful discrimination. She felt that the whole incident had taken the shine off having a new baby. Her self-confidence had taken quite a battering. The experience had affected her friendships, particularly with Ms Hicklin. She felt very aggrieved that she had lost her job. She greatly enjoyed her work and working with her work colleagues. The job was most convenient because she was able to drop her older child at school before going to work. It was also based in a convenient location. 4.6 During the course of her employment the Applicant was diagnosed with an illness. After May 2002 she was advised by her medical practitioners that she should delay having appropriate treatment because it was felt that she would not be able to cope with its side-effects. However, in or about April 2004 there were concerns about the progress of the condition and she was advised to start the treatment. 4.7 The Applicant felt that the new job was created with Ms Hicklin in mind unless she was pushed out. She felt hurt and her confidence was seriously undermined. The Applicant was unlikely to begin the process of regaining her confidence until she found alternative employment".[50]Later the Tribunal said as follows:
"10. The Tribunal found that as a result of the unlawful discrimination the Applicant suffered a considerable loss of confidence. She had to endure the effects of the discrimination for nearly a year before her employment was terminated. She attended the Tribunal over 6 days of hearing (5 for liability and 1 for remedy). The whole experience, as she put it, 'took the shine off having the baby'. It created a 'gnawing anxiety'. She suffered the loss of congenial employment. She was advised by medical practitioners to delay treatment for a medical condition because it was thought that she was not well enough. 11. The Tribunal had the opportunity of observing the Applicant throughout the proceedings and had no hesitation in accepting her evidence. It was impressed by the fact that the Applicant clearly did not wish to exaggerate the effects of the Respondent's unlawful actions. It was only in response to the Tribunal's questioning that she mentioned the advice she had been given by medical practitioners. There was no doubt that the Applicant had suffered a considerable loss of confidence and that she had a great sense of loss and disappointment. This occurred at a time when she should have been able to enjoy fully her new baby"
. Those were the findings in relation to her state of mind as a result of the discrimination by the Respondent.[51]The conduct of the Respondent which led to that effect occurred between March and May of 2002 in relation to the refusal of the RRM post being on job share, so that she then went off on her maternity leave knowing that she would not have attained her request, and between January and February 2003, when, while still away on maternity leave, there was the similar refusal in relation to the TSM job. She was then given three months' notice and, as we understand it, did not return to work: then in September 2003, as we have described, she was able to find a place on a course which she then started.[52]The criticisms of the Tribunal are said by Mr Coppel to fall within all three of the bases upon which this Appeal Tribunal can and should interfere. First, he submits that the approach of the Tribunal was erroneous in law, and thus the first ground, namely that the Tribunal had acted on a wrong principle of law, was made out. The Tribunal constantly refers to what is "just and equitable" in its judgment. In paragraph 9, the Tribunal decided "that it was just and equitable to award compensation on the basis of a 2½ week". In paragraph 12:
"The employment was clearly congenial for several reasons and it was just and equitable to compensate the Applicant for her loss"
. Paragraph 14:
"The Tribunal decided that it was just and equitable to award the Applicant the sum of £14,000 in respect of injury to feelings"
. Paragraph 16:
"In all the circumstances the Tribunal decided that it was just and equitable for the Respondent to compensate the Applicant for course fees…"
Paragraph 17: "Accordingly it was just and equitable to award the Applicant compensation for a period of twelve months from the date of the remedy hearing".[53]The Sex Discrimination Act 1975 provides by section 65 that where an Employment Tribunal finds that a complaint presented to it under section 63 is well founded, the Tribunal shall make "such of the following as it considers just and equitable"; and those are orders either declaratory or requiring payment of compensation or making a recommendation. What is clear is that it is to which order to choose that the rubric "just and equitable" refers. If it considers it just and equitable under section 65(1)(b) to make an order on compensation, then the compensation that must be paid is "of an amount corresponding to any damages he could have been ordered by a county court…to pay the complainant if the complaint had fallen to be dealt with [by the county court] ".[54]It is plain that the Tribunal does use over and over again the rubric of "just and equitable" when one would have expected it to have used the rubric of "causation" or "remoteness". Mr Massarella submits that, on analysis of the decision, what has occurred is simply that the wrong label has been put on the conclusion on each occasion, and that, on each occasion, the conclusion can be justified, certainly so far as course fees are concerned and the 2½ day week (which was, in fact, a finding which was in favour of the Respondent) and in relation to the period of 12 months.[55]That may be right, and the fact that the wrong label has been put on it does not necessarily result in a finding that the conclusion itself is flawed, if the conclusion can be otherwise justified. But it does mean that this Tribunal has to look the more carefully at those conclusions to be sure that the right approach has been adopted, notwithstanding the wrong label being used.[56]So far as specifics are concerned - and this is where Mr Coppel moves into the second Vento band which is 'misapprehending the facts' - in any event Mr Coppel would be entitled to attack a conclusion on the basis of perversity by addressing the question as to whether there are matters which the Tribunal took into account which it should not have done and did not take into account which it should have done.[57]There are three matters upon which he relies. The first is that to which we have referred, namely the course fees. This has certainly some impact on the matters before the Tribunal. First, the fact that the Tribunal thought it right to award a sufficient sum - so that, over a period of two years, the Claimant would be entitled to obtain fresh experience and fresh qualifications, and not be penalised in terms of loss of earnings during the period - was bound to have an effect on the issue which it addressed, and rightly addressed, namely the Claimant's great sense of loss and disappointment, and also the lack of confidence which the Tribunal also found.[58]There is a further impact, too, on mitigation of loss; and that is that, as a result, instead of remaining at home, with her gnawing anxiety and her distress continuing, while she remained out of work, unavailingly trying to find alternative employment, she was, for at least a day a week, out and about, and achieving something which she had not previously achieved, namely acquiring the benefit of an extra qualification by virtue of the course.[59]Both those two aspects were ameliorative upon what was otherwise a claim for compensation for injury to feelings, and we agree with Mr Coppel that that was a consequence which ought to have been taken into account by the Tribunal, after it allowed the expenditure upon those course fees, and allowed a period when the Claimant was not to be criticised for not finding work.[60]The second matter referred to relates to the medical condition, to which reference was made in the Judgment; and clearly, the Tribunal was, and was entitled to be, impressed by the fact that the Claimant was not in any way seeking to exaggerate her position because she had not mentioned the medical condition, and it had simply come out in questioning by the Tribunal, it seems, at the end of her evidence. That was plainly a matter redounding substantially to the credibility of the Claimant. But it appears that the Tribunal not only took it into account in that regard, but also in calculating the compensation payable. It mentions that aspect, not only in paragraph 4.6 of the Judgment but, again, in paragraph 10.[61]Mr Coppel submits that there was no basis upon which the Tribunal was entitled to take that into account, when it had no evidence to show any causative aspect of it. We do not know even now what the condition was, we do not know why the treatment was delayed or what effect its delay had and whether the delay resulted from any act of the Respondent. The finding by the Tribunal is simply that she was advised by her medical practitioners that she should delay having appropriate treatment, because it was felt that she would not be able to cope with its side effects, but that apparently in April 2004 there were concerns about the progress of the condition and she was advised to start the treatment.[62]Given that it is not anywhere indicated how (if such be the case) her health was affected by the Respondent, or that such condition was caused or exacerbated or the treatment delayed by the Respondent, it appears to us that there was not sufficient evidence, without exploration, upon which the Tribunal could have rested any conclusions.[63]Thirdly, by amendment to the Notice of Appeal which we permitted after hearing argument today at the same time as we permitted an amendment to allow the "just and equitable" argument to be run (which had featured in Mr Coppel's Skeleton Argument), Mr Coppel criticised paragraph 13 of the judgment which reads as follows:
"Although the Tribunal did not consider that this was a case which warranted an award of aggravated damages, the Tribunal decided that an aggravating feature of the Respondent's behaviour was that between May 2002 and the decision to dismiss the Applicant, the Respondent failed to listen properly to the Applicant's suggestions or to consider fully how it might be able to accommodate her wishes"
. It is quite plain that the latter part of that sentence, namely the failure to listen properly or give full consideration, is simply a reference to the very conduct, namely between March and May 2002 and January and February 2003, which the Tribunal had found to be discriminatory.[64]Mr Coppel submits that what occurred here was that although the Tribunal made an express finding that there was no conduct which warranted an award of aggravated damages, they did conclude the discriminatory conduct in question to be what they referred to as "an aggravating feature". It is common ground between Mr Massarella and Mr Coppel that, absent a finding of aggravated damages, it is not appropriate to consider the conduct of the Respondent, but simply the effect on the Claimant.[65]Mr Massarella submits that the word "aggravating" in paragraph 13 should be taken as meaning 'irritating' or 'exacerbating' and simply to be a statement of fact which then has its implicit result in some effect on the Claimant. We cannot accept that. It is quite plain to us that the use of the words "aggravated" and "aggravating" in the same line are intended to mean the same and that this Tribunal concluded that, although there was not conduct sufficiently serious to merit an award of aggravated damages, nevertheless that conduct was an aggravating feature. In any event, it follows on after the very full consideration which the Tribunal had given to the effect on the Claimant and it is immediately followed by the conclusion in paragraph 14 which was that the Tribunal decided that "in all the circumstances" the Applicant's case merited an award towards the top part of the middle band described in Vento . We are satisfied that, erroneously, the Tribunal did take into account conduct of the Respondent, and conduct which, on its face, was no worse than any other conduct which amounts to discriminatory behaviour by an employer. In those circumstances, there are three matters in relation to which we are satisfied the Tribunal erred with regard to the second basis referred to in paragraph 51 of Vento .[66]We turn then to the question as to whether there is a "wholly erroneous estimate" of the loss suffered. Strictly speaking, this does not need to arise, particularly given the finding we have made in relation to the second basis of challenge. But it is timely to be able to say something in our judgment about the recently published Equal Opportunities Review ("EOR") Guide to Compensation in Discrimination Cases. Although this has, we are told, been published for many years, it seems that this is the first year that it has been published as a separate report. The Guide describes how it consists of an attempt to build up a "database of employment tribunal decisions received from the three commissions, lawyers and other representation bodies along with thorough search of the Employment Tribunal Service central records office" to ensure or seek to ensure that they have included every discrimination case where compensation is awarded: and the EOR Guide to Compensation in Discrimination Cases for this year says that it "draws upon all discrimination decisions in 2004".[67]Mr Massarella has described this publication as "not Kemp & Kemp" and one doubts that anything could be as good as that veritable book, which has been published for so many years and is now, of course, in several volumes. But, in so far as it is a complete, or purportedly complete (and certainly not selective), collection of all employment tribunal decisions relating to the grant of compensation for, inter alia , sex discrimination, it can be a helpful tool, particularly for an appellate tribunal dealing, as we are dealing, with a decision in respect of which other criticisms are made. We are not suggesting that every employment tribunal dealing with discrimination compensation should be required to trawl through this Guide before it arrives at its decision; that would be both counterproductive and time-consuming. What, no doubt, will be done however is that the practitioners will look at the EOR Guide and see how far they are able to assist a Tribunal by similar or dissimilar cases. Each Tribunal is the judge of its own facts and is not in any event bound by decisions of other Employment Tribunals. But this is plainly an area which, as Mummery LJ made clear in Vento , is not an easy one, even within the bands, never mind to decide which band a particular case should arrive in. We have certainly been assisted by the EOR Guide on this appeal.[68]Mr Massarella, while not accepting that the EOR Guide is necessarily complete, criticises the brevity of the summaries in relation to each case. It must inevitably be the fact that it is difficult to summarise in three or four paragraphs what may well have taken pages in an employment tribunal decision and clearly, the Guide must be used with considerable caution if it is not to be supplemented by the obtaining, before a hearing, of the full report of a relevant decision, in so far as it is to be drawn to the attention of a Tribunal; and we certainly recommend practitioners, before they adduce these matters at an Employment Tribunal, to obtain the copies of the decisions which are drawn to their attention by the Guide, rather than simply relying upon the Guide itself. But that said, it has been before us, and we have found it a useful check, just as it is a useful check to consider what Mummery LJ in Vento encourages us to consider, namely a comparison with claims for personal injury in the ordinary courts.[69]We shall not lengthen this judgment yet further by considering in detail the cases which are set out in the EOR Guide, to which we have referred. Mr Coppel has referred to one case at the very top of the lower band and to two cases at the very bottom of the middle band. Mr Massarella has drawn our attention to cases towards the top of the middle band. None of them are entirely similar to this case. Having looked at them, however, we are certainly satisfied that if we looked at the Guide alone, we would conclude that this award in this case was out of line with the other cases that are set out in the Guide. We are satisfied that the conclusion by this Tribunal that the sum of £14,000 should be awarded should be set aside, not only because we cannot be satisfied that the correct approach in law was adopted, but also because it erred in the three specific respects to which we have referred. In reaching our conclusion that the award is too high, we very much take into account Mr Massarella's submission, reminding us of the words of Mummery LJ in Vento that we should not interfere with a decision simply because we would not have made an award that was as high as the Tribunal made; not only because that is not the task of the Appellate Tribunal, but because we have not seen the witnesses, and the words used by the Employment Tribunal may be inadequate to record the strength of their conclusion that there had been injury to feelings, albeit not evidenced in any medical report or any other external form. Nevertheless we are satisfied that we should interfere.[70]We have been urged by both Counsel that if we were to form the view that this award should be set aside, we should not send the matter back to the Tribunal, but should substitute an alternative sum. In doing so - and we take up that suggestion - we err on the side of conservatism. That is for the reason to which we have just referred, namely that, albeit that it might seem to us that a much lesser figure would be appropriate. and that looking at the figures in the Guide, a much lesser award would appear to arise if those cases are adequately summarised and it can indeed be fully relied upon, nevertheless we must remind ourselves that if we were to send this back to the Tribunal, and not substitute, this Tribunal knows best what it had in mind, and may well have had in mind matters which it did not expressly articulate.[71]The sum which we propose to substitute is the sum of £10,000, and that is an award which takes the failure to take into account the strong mitigation which the course involved, the risk that the conduct of the Respondent was improperly taken into account, and what, in effect, Mr Coppel almost accepted in the course of argument, namely the fact (albeit he said it would only reflect a small sum) that the Tribunal was not justified in taking into account the medical condition, as it appears to have done. In those circumstances, the sum falls to be reduced in any event. The figure we arrive at reflects both the cases we have seen and our conclusion as to what the maximum would have been that, on a remission, this Tribunal would have arrived at. In those circumstances, the appeal is allowed to that limited extent. It is dismissed save as to the reduction of the compensation for injury to feelings from £14,000 to £10,000 which will have an impact on the interest which will no doubt be calculated.