LONDON BOROUGH OF LAMBETH v MR A OWOLADE [2005] UKEAT 0789_04_2202

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0789_04_2202Case No Appeal No. UKEAT/0789/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF LAMBETHAPPELLANTMR A OWOLADERESPONDENT
Before
Mr Justice Rimer Mr T Haywood Ms P TatlowDate 22 February 2005
[1]APPEARANCES For the Appellant MR PHILIP THORNTON (of Counsel) Instructed by: London Borough of Lambeth Legal Services Room 205 Lambeth Town Hall London SW2 1RW For the Respondent MS SHANTA DRIVER (Representative) THE HONOURABLE MR JUSTICE RIMER The matters before us are an appeal and cross-appeal against a remedies decision of an employment tribunal sitting at London South over four days in early August 2004 and chaired by Mr D M Booth. The extended reasons were sent to the parties on 11 August. The same employment tribunal had dealt with the issue of liability over some 14 days between April and August 2003, with their extended reasons being sent to the parties on 17 September 2003.[2]The applicant before the tribunal was Mr Alex Owolade. The respondent was his former employer, the London Borough of Lambeth ("Lambeth"). By his originating application, presented on 18 February 2002, Mr Owolade claimed that by a disciplinary process and subsequent dismissal on 20 November 2001 Lambeth had(i) treated him less favourably on racial grounds,(ii) treated him less favourably because he had made a protected disclosure,(iii) subjected him to a detriment on the ground that he had made a protected disclosure, namely one to the effect that Lambeth had acted in breach of a legal obligation under the Race Relations Act 1976 ("the RRA "),(iv) dismissed him for taking part in the activities of an independent trade union, and(v) unfairly dismissed him. Lambeth admitted they had dismissed him but claimed it was for misconduct after a proper investigation and disciplinary hearing.[3]The outcome of the liability hearing was that the tribunal held(i) that Lambeth had treated Mr Owolade less favourably because he had alleged a breach by them of the RRA (i.e. they found Lambeth had victimised him) and(ii) that they had dismissed him for taking part in the activities of a trade union, such dismissal being automatically unfair. They dismissed Mr Owolade's other claims. The outcome of the later remedy hearing was that the tribunal ordered Lambeth to reinstate Mr Owolade in his former post with effect from 1 October 2004 and that, in respect of the victimisation finding, they ordered Lambeth to pay him compensation of £5,000 for injury to his feelings, plus interest of £825.[4]Lambeth is the appellant before us. It asserts that, in arriving at their decision to order reinstatement, the tribunal did not consider certain material matters which they ought to have considered before making such an order. Lambeth also submitted that the reinstatement order was perverse. Mr Owolade has resisted the appeal, asserting that the tribunal's reasoning for making the reinstatement order is unimpeachable. He does, however, complain about the quantum of the compensation awarded to him for injury to his feelings and, by a cross-appeal, he has asserted that the award of £5,000 was erroneous in law and that the case was so serious that an award of £75,000 should be substituted for it. Mr Philip Thornton, of counsel, appeared for Lambeth and Ms Shanta Driver appeared as a representative for Mr Owolade. The appeal[5]Part X of the Employment Rights Act 1996 ("the ERA ") is concerned with unfair dismissal and Chapter II of Part X is concerned with remedies. Sections 113 to 117 are within a part of the Chapter headed "Orders for Reinstatement or Re-engagement." Section 113 empowers a tribunal to make an order for reinstatement or re-engagement and section 116 is headed "Choice of order and its terms." Section 116(1) is the provision of primary relevance for the purposes of the appeal and reads as follows:
"(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account – (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement."
[6]The tribunal made an order for reinstatement. Before deciding to make such an order, the tribunal were obliged by the opening words of section 116 to take into account each of the matters referred to in sub-section (1)(a) to (c): the relevant words are "shall take into account etc." Lambeth accepts that Mr Owolade wished to be reinstated, so that section 116(1)(a) was satisfied. It accepts that the tribunal considered the question of the practicability of a reinstatement order, as required by section 116(1)(b), but it asserts that they erred in the manner in which they did so, by failing to take account of certain material matters which they should also have taken into account. It also asserts that, contrary to section 116(1)(c), the tribunal wholly failed to consider the justice of a reinstatement order having regard to the fact that, so Lambeth claims, Mr Owolade had materially caused or contributed to his dismissal. As we have said, Lambeth also submitted that the reinstatement order was perverse. In order to explain the context in which these various submissions were made, we must first identify the essence of the factual findings that underlie them. These are to be found primarily in the tribunal's reasons for their decision on liability. The tribunal's findings as to the facts leading up to Mr Owolade's dismissal[7]Mr Owolade is black. He joined Lambeth in 1992 as a Housing Assessment Officer in the Homeless Persons Unit, where he worked until his dismissal in November 2001. At an early stage of his employment, he was elected as a UNISON representative of his department and has been active in union affairs ever since. He was allowed time by Lambeth to perform his union responsibilities. He was active in the Movement for Justice, a body devoted to urging racial justice in Lambeth. He is an eloquent and voluble spokesman for black residents within the Borough and had made no secret of his belief that racial discrimination was rife within the Borough generally and within Lambeth Council in particular. The tribunal said, in paragraph 18 of their liability reasons, that Mr Owolade saw his case "as part of a much larger campaign against racism in Lambeth and indeed a test of the credibility of Employment Tribunals among black people whereas we must restrict ourselves to the matters set out in the issues at the head of this decision."[8]Within Lambeth's Housing Department there was a section called the Lambeth Community Alarms Service ("the LCAS"). The LCAS provided a response service to alarms in sheltered accommodation. At the material time, the LCAS's manager was Anya Oyewole, a white woman married to a black Nigerian, and it had a staff of 13 of whom seven were black. From 1995, the staff had been dissatisfied with their management. The management, particularly Ms Oyewole, was also dissatisfied with the performance of the staff. This led, in 1998, to a formal management investigation into the operation of the LCAS. The initial report was critical of both management and staff. The report was shown first to management, who protested about it, it was then referred to the Head of Human Resources, James Dalgleish, and some months later a final report was circulated to staff. The final report was less critical of management and did not satisfy the staff, who were aware that there had been an earlier report they had not seen. Perhaps not surprisingly, the staff suspected there had been a cover up and the tribunal's view was that these events may have further poisoned the atmosphere between staff and management.[9]In 1999, two staff members of the LCAS brought employment tribunal proceedings against Lambeth for alleged race discrimination. The complaints followed disciplinary action brought against them by management. The complaints were dismissed, the tribunals finding that, although there were differences between management and staff, race was not a factor in those differences. Mr Owolade did not accept those findings and continued to accuse the managers of racism. We will refer to these two dismissed complaints as "the 1999 complaints."[10]In April 2000, a resident complained that the LCAS had failed to respond to a call. An investigation identified the two workers concerned as Ms Small and Ms Davis. They were summoned to a disciplinary hearing on 30 October 2000 but neither attended. Mr Owolade and his union had asked for an adjournment of the hearing and, in the absence of a reply, assumed it had been granted whereas in fact it had been refused. The charges were heard in the absence of the two workers, who were dismissed for gross misconduct. They were then seen on 7 November 2000, in the presence of Mr Owolade, and were suspended from work pending confirmation of their dismissal. They were told they must not re-enter their place of work and were told to contact Ms Oyewole to discuss the procedure for handing in their keys and collecting their belongings etc. However, they ignored this instruction and, on the same day, went to their place of work with Mr Owolade, and without prior arrangement, to collect their belongings and hand in their keys. Ms Oyewole later complained that when they got there Mr Owolade shouted at her that he would not speak to her. We will refer to this incident as "the 7 November incident."[11]Mr Owolade was party to a decision on 8 November 2000 to apply for a new hearing for Ms Small and Ms Davis. He and they agreed to publish a leaflet in support of their application, and the tribunal found that, although it went out in the names of the two women, he was a prime mover in its conception, production and circulation. The leaflet alleged that disciplinary action had been brought against the women for malicious and vindictive reasons and it recited a history of complaints against the LCAS. It continued:
"In the six years that Anya Oyewole has been a manager, there have been numerous disciplinaries and suspensions particularly of black staff. In a section which consists of 13 staff this is ludicrously high. Why has this been allow [ sic ] to continue?"
The leaflet ended by saying that "The time has come for intimidation, racism and victimisation in community alarms to stop."[12]A rehearing was fixed for 20 November, notice of which was given by a letter of 10 November. On 9 November, Mr Owolade went to the LCAS office and said "Where is the racist?" He was referring to Ms Oyewole. On 14 November, Mr Owolade issued a second leaflet announcing the re-hearing. The tribunal found that, on the same day, Ms Oyewole received an anonymous telephone call threatening her with death. They said of that:
"There was no direct evidence that it came from Mr Owolade personally but she [Ms Oyewole] connected it with the leaflet of 8 November which mentioned her by name."
The tribunal made no finding that the threat came from Mr Owolade.[13]On 15 November, Patsy Aduba (the Assistant Director of Special Housing Services at Lambeth) wrote to UNISON objecting to the use of the leaflets and making clear that she regarded them as harassment of the LCAS management. Despite that, on 30 November Mr Owolade drafted and distributed a further leaflet both by the use of Lambeth's email and by placing it on desks. The use of email for distribution to more than 100 people required special permission, which Mr Owolade had not obtained, although the tribunal found that this rule was commonly breached without action being taken. On 12 December, Mr Owolade published and distributed a fourth pamphlet seeking support for his members at the rehearing.[14]The rehearing took place on 13 December. Mr Owolade represented Ms Small and Ms Davis. They were both dismissed but they later appealed and were reinstated, with final written warnings.[15]On 15 December, Ms Oyewole submitted a formal complaint against Mr Owolade. She blamed him for the content of the leaflets and for calling her a racist and she referred to the telephone call. She said she had been harassed and shocked by it all and called upon Lambeth to take action against Mr Owolade. She took advice from her union, GMB, which began defamation proceedings on her behalf against UNISON over the leaflets. UNISON instructed Mr Owolade not to issue any further leaflets or, as the tribunal put it, "to have any meetings around his campaign." The result was that Mr Owolade adjourned the next protest meeting. UNISON later settled the defamation proceedings by paying £37,000 compensation, offering an apology to Ms Oyewole and acknowledging that she was not a racist and that the allegations were without foundation.[16]Ms Oyewole's complaint against Mr Owolade was investigated by Mr Brewer and Mr Ofame. They wanted to interview Mr Owolade in March 2001, but as the defamation proceedings were still underway their investigation was deferred until after the settlement of those proceedings, which was in May. Written questions were submitted to Mr Owolade, which he either refused to answer or answered in a non-committal way. Ms Oyewole then issued tribunal proceedings against Lambeth complaining of lack of support for her on racial grounds, a claim which was settled when she left Lambeth in January 2002.[17]Mr Brewer and Mr Ofame interviewed eight witnesses about Mr Owolade's conduct and received a statement about his conduct at the re-hearing of the Small/Davis disciplinary matter. They produced their final report on Mr Owolade in September 2001 and concluded that there was evidence that he had committed gross misconduct by harassing and bullying Ms Oyewole in a way which went beyond his duties or licence as a union official. On 26 September, he was formally charged with two disciplinary charges and a hearing was fixed for 13 and 14 November.[18]The disciplinary panel comprised Molly Wallis, an Assistant Director in the Housing Department, and Irene Clark, a Chief Human Resources Officer. The charges against Mr Owolade were "gross misconduct" and "misconduct". The former charge was to the effect that his actions had amounted to harassment and bullying of an employee, namely Ms Oyewole. The latter charge was that, in breach of rule 13, Mr Owolade had breached Lambeth's internet and email policy by distributing pamphlets of a potentially defamatory nature without authorisation.[19]The panel's conclusion was that the management investigation had been reasonable, that Mr Owolade had bullied and harassed Ms Oyewole and that the charge of gross misconduct was proved. They found that the 7 November incident had caused distress to Ms Oyewole. They found Mr Owolade had either complete or part responsibility for the leaflets, which had offended and intimidated Ms Oyewole, as UNISON had accepted. There was, in particular, no need to issue further leaflets after a decision had been announced on about 10 November 2000 that there would be a re-hearing of the disciplinary charges against the two women: the panel found that to do so "went well beyond the actions of a trade union representative which was to present his member's case before a disciplinary panel." They found the "Where is the racist?" incident of 9 November to be a serious offence amounting to gross misconduct: there was no firm evidence for making any such imputation against Ms Oyewole and UNISON's apology made it at least unlikely that there was any such evidence. The panel found Mr Owolade guilty of gross misconduct and recommended his summary dismissal. Ms Wallis confirmed that recommendation by a letter of 20 November.[20]Mr Owolade appealed against the decision. The appeal was fixed for 6 February 2002, but UNISON asked for an adjournment. Mr Owolade sought to be represented by Ms Masley, an American lawyer. He fundamentally disagreed with UNISON's apology and regarded UNISON as being in a hopelessly compromised position. There was a difference between Mr Owolade and Lambeth as to whether Ms Masley could represent him, which led to High Court proceedings. Only at the beginning of the hearing did Lambeth concede that Ms Masley could represent Mr Owolade and so the hearing was adjourned to 8 May 2002 for the determination of certain procedural points. Neither Mr Owolade nor Ms Masley attended on 8 May and the hearing proceeded in their absence. Mr Owolade then went to the USA and Ms Masley sent a note saying that he was unfit to travel to the UK for the appeal, although no particulars were provided as to why he was so unfit. Ms Masley said that nothing short of a complete rehearing of the disciplinary hearing would do and that neither she nor Mr Owolade would attend anything less. The outcome was that the panel concluded that Mr Owolade had no genuine intention to bring the matter to a hearing and so it concluded that the decision of the disciplinary panel should stand. The tribunal's decision on liability[21]Mr Owolade's claims included claims that he had been dismissed because he had taken part in the activities of a trade union and/or because he had made allegations of a breach by Lambeth of the RRA , the latter allegation amounting to a claim of victimisation. Lambeth's case was that he had been dismissed for misconduct. In paragraph 53, the tribunal identified the relevant question as being whether Mr Owolade was dismissed(i) because in the course of his lawful duties as a union official he had alleged a breach of the RRA ; or(ii) because his campaign of abuse and harassment of Ms Oyewole involved misconduct falling outside the authorised activities of the union. Lambeth's case was that he was entitled to represent his members and allege race discrimination if he genuinely believed that to be the case but that he could do so without publishing defamatory leaflets making untrue allegations of racism, without shouting "Where is the racist?" and without using bullying tactics at his members' disciplinary hearing. The mere belief in his members' allegations of racism did not mean that his subsequent allegations were made "in good faith" (see section 2(2) of the RRA ). Mr Owolade had apparently referred in his first pamphlet to the 1999 complaints (in which the tribunals had rejected the claims of race discrimination), and had resurrected the complaints of the two claimants. Moreover, UNISON had admitted in the defamation proceedings that Mr Olowade's allegations were untrue and damaging.[22]The tribunal concluded that, as regards the (dismissed) allegations of racism made by the 1999 complaints, their resurrection by Mr Owolade could not be sustained as being made in good faith. However, the tribunal found that the history of the complaints from staff about the LCAS management did amount to evidence to support a general allegation of racism and the tribunal accepted "that Mr Owolade entertained a reasonable belief in the truth of at least some of his allegations and his disclosure was therefore protected …". We emphasise the "at least some" as showing that the tribunal did not accept that he had a reasonable belief in all his allegations, one obvious exception which the tribunal had in mind being with regard to the resurrection of the 1999 complaints. The tribunal went on to find, in paragraph 60, that, against the background which they had summarised, "vigorous action aimed at the manager of the unit was therefore justified. If senior management would not do anything about it then a public campaign was a proper trade union activity."[23]The tribunal acknowledged that their conclusion did not lie easily with the fact that UNISON had admitted that Mr Owolade's allegations were not true and should not have been made. They found, however, that the apology was made by UNISON and not my Mr Owolade, UNISON being anxious to safeguard union funds, and that at Mr Owolade's disciplinary hearing UNISON had also made the point that the apology was theirs alone. The tribunal therefore concluded that they could not make a finding against Mr Owolade that what he said was in fact untrue. Their conclusions in paragraphs 62 to 64 were as follows:
"62. Turning to the individual incidents we are satisfied that his expression "
Where's the racist?" whilst unwise and no doubt upsetting is a genuine expression of his belief that Mrs Oyowole [ sic ] had treated black employees less favourably on racial grounds. We are satisfied that on the evidence of those conducting the disciplinary hearings of the members he conducted himself within the expected norms of a representative and that Winston Brown's evidence that he had to support Mrs Owoloye [ sic ] meant no more than that she was upset, not that Mr Owolade had behaved so irresponsibly as to go outside his duty vigorously to defend his members. We are also satisfied that in the circumstances the pamphlets were a permissible means of taking action against an unjust management and were within the scope for his trade union activities. 63. We therefore find that the reason for his dismissal was that he was carrying out trade union activities. That makes his dismissal automatically unfair and we need go no further into the procedure. It seems to us that that was the principle [ sic ] reason for his dismissal. Therefore as a matter of logic the protected disclosure cannot be the principle [ sic ] reason and we therefore dismiss that allegation. It is simply impossible to have two principal reasons. 64. We are further satisfied that there is a causative link between the allegations which he made in good faith and his dismissal. Having found that he had a right to express them or at least some of them in the vigorous way he did we find that he does not forfeit the protection of the law because they upset Mrs Oyowole [ sic ]. "[24]In paragraph 65, the tribunal gave brief reasons for dismissing Mr Owolade's complaint that he had been dismissed because he was black.[25]We come now to the grounds of Lambeth's appeal against the tribunal's decision on the later remedy hearing that Mr Owolade should be reinstated. We will deal with the grounds under the following sub-headings.

(c) of the ERA

[26]Mr Thornton submitted that the tribunal's findings did not amount to a complete vindication of Mr Owolade's actions. They found that his renewed allegations of racism in relation to the 1999 complaints were made in bad faith and that his oral accusation of racism against Ms Oyewole was "unwise and no doubt upsetting" although we have recorded that the tribunal found it was a genuine expression of his belief. He submitted that it was clear that Mr Owolade's conduct "caused or contributed to some extent to the dismissal" (see section 116(1)(c) of the ERA ) and did so to a high degree. He said it followed that the tribunal should have made a finding as to this when it came to giving it reasons on remedy.[27]Mr Thornton submitted, however, that the tribunal did not even consider this when dealing with the claim for reinstatement. They recorded in paragraph 3 of their remedy reasons that Lambeth's case was that reinstatement was impracticable and that Mr Owolade's conduct had contributed to his dismissal, although they were there only referring to the latter point in the context that such conduct would or might serve to reduce any compensatory award. At and following paragraph 22, the tribunal summarised the facts, opening their findings by referring to "the criticisms we made [in the extended reasons on liability] of Mr Owolade's conduct and of his supporters and the personal attacks he made upon managers including the Council's Chief Executive." The tribunal added that "Regrettably those attacks did not cease upon his dismissal" and they went on to explain some features of Mr Owolade's conduct since his dismissal.[28]We need not focus on the detail of that, since we are only here concerned with Mr Thornton's point that nowhere did the tribunal address the consideration raised by section 116(1)(c) of the ERA (we add that there was no dispute that Lambeth's case at the remedy hearing included the submission that the section 116(1)(c) consideration pointed away from the making of a reinstatement order). After making findings about the post-dismissal history and referring to the parties' respective submissions, the tribunal expressed their conclusion and supporting reasons as follows:
"Our decision 48. As we understand the combined effect of section 113 and the case law, we must consider all the evidence we have heard in the case, including our observation of the parties. We must take into account [Mr Owolade's] behaviour both before and since his dismissal. We must then peer into the future, imagine him back at work representing his black colleagues in their disputes with management and ask ourselves whether his previous destructive personalised attacks upon managers will continue with the effect outlined in the inquiry report [a report following a public inquiry into the LCAS incidents held after the liability decision] and the departure of managers on sick leave and ultimately resigning their posts and bringing cases against the authority. If so there would be a considerable case against the reinstatement. 49. If, however, we accept his assurances that he will not call for the removal of senior managers and that the new procedures will make his former tactics unnecessary then reinstatement would be practicable. 50. The considerations in favour of his reinstatement are (a) his job is still open (b) his line manager is anxious that he return (c) this is a large employer with many thousands of employees and he will not come into day-to-day contact with those whom he has previously offended (d) the managers concerned are highly-paid and experienced and work for an authority where vigorous politics is the norm and should have the experience and character to handle worker representatives (e) Mr Owolade has undertaken to moderate his conduct and has withdrawn his demands that the Chief Executive should go (f) the new framework adopted by the authority should ensure that past confrontations will not be repeated. 51. The considerations against his reinstatement are (a) Race relations are still a live issue in Lambeth. (b) The Movement for Justice still campaigns publicly that Mr Owolade's reinstatement is necessary to continue the fight for racial minorities to the point of leafleting all those entering the tribunal, erecting slogans on the railings and packing the public seating. (c) The evidence of some of [Mr Owolade's] witnesses makes it very clear that should grievances recur [Mr Owolade] will be expected to campaign as vigorously as before. Beneath his bland assurances lies an intention to return to his former crusading role and methods which as the Inquiry found made matters worse rather than better. (d) In his absence the new system has settled down. Unions and management are hopeful that it will continue. (e) Such was the ferocity of his attacks upon the Chief Executive and other officers that time cannot heal their loss of confidence in him. (f) His reinstatement will send a message to staff that the Council can be defied at will to the considerable profit of troublemakers. 52. We recognise that English common law was markedly reluctant to impose an employee upon an unwilling employer and that even though the remedy is now available in statute it is sparingly used. However on balance we consider that re-instatement will work We take into account that in representing colleagues for nine years Mr Owolade had not been in this sort of trouble before and that the new arrangements make it likely that similar situations will not occur again. Mr Owolade has accepted the Inquiry's observation that his branding individuals for institutional failings was mischievous and must therefore know that repetitions would not be protected by the good faith provisions of the discrimination legislation. Further he has undertaken not to attack senior officers in the way which caused offence and he must recognise that a man of his physical stature can appear threatening to female colleagues when he is campaigning. 53. His Union with whom he had major differences, wants him back. His own Department will welcome him. Those officers who oppose his return will rarely meet him. In an undertaking with over ten thousand employees reinstatement should work. 54. We therefore order that [Lambeth] re-instate [Mr Owolade] in his post in the Housing Department with effect from 1 st October 2004."
[29]Mr Thornton submitted, correctly, that nowhere in their recitation of the opposing considerations did the tribunal focus on the question of whether and to what extent Mr Olowade caused or contributed to his dismissal and, on the footing that he did, whether it would be "just" to order his reinstatement. They did say, in paragraph 48, that they had to take account of his behaviour before his dismissal, but we make two points about that. First, paragraph 48 does not reflect a clear recognition of the specific consideration that section 116(1)(c) required them to take into account. Secondly, in setting out (in paragraph 51) the considerations against reinstatement, the tribunal hardly focused at all on Mr Owolade's pre-dismissal conduct, at any rate in concrete and specific terms. Mr Thornton submitted that the section 116(1)(c) consideration was a vital step in the overall exercise the tribunal were performing and one that was separate from, and additional to, the other required consideration (under section 116(1)(b)) of whether or not reinstatement is "practicable". He referred us to the observation in Harvey on Industrial Relations and Employment Law , at D1 [2400] - [2410], that:
"Obviously it is going to be only in the most exceptional of circumstances that a tribunal will order reinstatement of an employee who has contributed to the dismissal in a blameworthy sense, for why should he then be treated as though he had never been dismissed?"
[30]Mr Thornton submitted that, in the light of the facts relating to Mr Owolade's conduct, the tribunal made an exceptional order without first expressly considering the justice of doing so in the light of the consideration identified in section 116(1)(c).[31]Ms Driver, for Mr Owolade, submitted that there is nothing in section 116(1)(c) that required the tribunal to make a specific finding on contributory fault and as to whether, in consequence of any such fault, it would be just to order reinstatement. That is correct, but section 116(1) does specifically require the tribunal to take account of the section 116(1)(c) consideration and the appeal is based on the proposition that it is not apparent that the tribunal paid any regard to it at all. They set out various points for and against reinstatement but did not deal with this one. There is no presumption that they had taken it into account and Mr Thornton's submission is that the natural inference from the way they framed their reasons is that they did not.[32]Ms Driver submitted that any such inference is, however, unjustified. She referred us to Hollier v Plysu Ltd [1983] IRLR 260, in which the Court of Appeal emphasised that this appeal tribunal cannot interfere with an employment tribunal's decision on contribution unless the employment tribunal has gone wrong in law or acted perversely in arriving at their decision. But we derive no help from that authority in the present context because the Lambeth's point is not that the tribunal erred in their assessment of the question of contribution, it is that they apparently made no assessment of it at all and gave no consideration to its impact upon the justice or otherwise of ordering reinstatement. Ms Driver submitted further that Lambeth's point was also unjustified for this reason, namely that in paragraph 22 of the remedies reasons, they in terms referred to their liability reasons and to their criticisms in them of Mr Owolade's conduct. But that reference was not made in the context of the section 116(1)(c) consideration. Paragraph 22 was simply the opening paragraph of the tribunal's summary of facts before coming to their conclusions on the reinstatement debate. Moreover, if they did have Mr Owolade's contributory fault in mind at that stage in their reasons, we consider that it was incumbent on them to deal expressly with the section 116(1)(c) point when they came to their conclusions.[33]Ms Driver's further submission was that in any event it was implicit in the tribunal's findings on liability that they found that the actions leading to his dismissal were within the scope of his trade union activities and that it followed that his pre-dismissal actions were shielded from being regarded as blameworthy conduct. She referred in particular to the tribunal's findings in paragraphs 60 and 62 of their liability reasons (from which we have earlier quoted the material passages). She said it followed that the tribunal were not actually required to take account of Lambeth's evidence and argument as to Mr Owolade's alleged contributory fault although she said that they did so anyway. As to the last point, for reasons we have given we can find no evidence that the tribunal did in fact do so, at any rate in the specific context of section 116(1)(c). As for Ms Driver's wider point that the basis on which the tribunal found for Mr Owolade on liability meant that they did not need to consider alleged contributory fault on the reinstatement issue, we do not, with respect, agree with this either. We agree that it is a point which may at least take some of the heat out of the contributory fault argument. Our analysis of the tribunal's findings, however, is that whilst they found that the essence of what Mr Owolade had been doing in pursuing his campaign against Lambeth in general (and Ms Oyewole in particular) was in performance of his trade union duties, they also found that in part they included the making of unjustified allegations in bad faith, in particular, the resurrection of the 1999 complaints. They found that his statement "Where is the racist?" was unwise and upsetting. We can see no finding by the tribunal that Mr Olowade's visit to Ms Oyewole on 7 November 2000 (found by the disciplinary hearing to have caused distress to Ms Oyewole) was justified by his trade union activities and, on the face of it, that visit appears to have been an act of unjustified defiance.[34]The tribunal plainly did not regard Mr Olowade as emerging with any personal credit from the episodes with which they were concerned. They referred, in paragraph 22 of their remedy reasons, to their earlier "criticisms" of him. We regard it as a reasonable interpretation of their findings on liability that they found that, for the most part, Mr Olowade's actions of which Lambeth has complained were performed in the discharge of his union duties, but that he chose to perform them, at least in part, in an unjustified, unwise, and upsetting way. There are different ways of doing things, and in material respects Mr Olowade went about the performance of his tasks either in a wrong way or else in an unnecessarily offensive and provocative way. We make clear that we are making no finding on the question of contributory fault, because we are not a fact finding tribunal. We consider, however, that a real question did arise as to whether, despite the tribunal's overall conclusion on the question of liability, Mr Olowade caused or contributed to his dismissal and, if so, to what extent. That is something that the tribunal have simply not addressed. In particular, and crucially, they did not consider it in the context of section 116(1)(c). In our view, that failure was a material omission. We cannot be confident that they would have come to the decision they did about reinstatement if they had considered that matter expressly.[35]We consider, therefore, that that aspect of the tribunal's remedies decision reflects an error of law: they failed to address themselves to, and take account of, a matter that the ERA required them to take account of in coming to their decision on the claim for reinstatement. This means that we consider we must allow Lambeth's appeal. Success on this ground of appeal entitles Lambeth to a re-hearing of the question of remedy. Lambeth also has other grounds of appeal certain of which it asserts would, if they are well founded, entitle us simply to reverse the tribunal's decision to order reinstatement. We will deal with those further grounds before coming to our decision as to how to dispose of the appeal. Did the tribunal fail to take account of Mr Olowade's allegations of a conspiracy against him?[36]Lambeth asserts that it was a key part of Mr Owolade's case that there was a conspiracy within Lambeth to get rid of him, one which permeated to the highest levels in general and to the Chief Executive, Faith Boardman, in particular. Ms Driver disputed that such an allegation had ever been any part of Mr Owolade's case, but we regard it as clear that it was. For example, in his reply dated 12 July 2002 to Lambeth's request for further and better particulars, Mr Owolade asserted that:
"The Chief Executive Faith Boardman is on the record well before the disciplinary panel heard Alex Owolade's case as conspiring to sack him with a series of public officials and civic leaders; in those exchanges the Chief Executive herself made clear that the current charges were insufficient to merit dismissal."
In the same document, Mr Owolade listed, as one of the alleged acts of racial discrimination against him, the "… attempt by Faith Boardman to frame false charges, disciplinary proceeding, and dismissal of Mr Owolade."[37]At the liability hearing, it remained Mr Owolade's case that his dismissal was improperly engineered by Ms Boardman. The tribunal dealt with this assertion in paragraphs 45 to 48 of their reasons. We need say no more than that, in paragraph 47, they rejected the allegation, although Mr Owolade continued his campaign against Ms Boardman even after the decision on liability, a matter which the tribunal explained in their extended reasons on remedy.[38]Mr Thornton submitted that, given Mr Owolade's assertion that there was a conspiracy against him, reinstatement was not an option which was practicable and that the tribunal was in error in not refusing reinstatement on this ground alone. Mr Thornton referred to two authorities supporting the proposition that, in a case in which the employee has made a claim of conspiracy against himself, reinstatement is unlikely to be an appropriate remedy.[39]The first is Nothman v London Borough of Barnet [1980] IRLR 65, in which, at page 66, Ormrod LJ said:
"Miss Nothman has mentioned in her proposed Notice of Appeal (and from time to time touched on it in this Court) what she believes to be the background of this case, that is her belief that there has been a long-standing conspiracy against her. We have made it clear in this Court that we cannot investigate that. It is only right to say that anyone who believes that they are a victim of conspiracy, and particularly by their employers, is not likely to be a satisfactory employee in any circumstances if reinstated or re-engaged. In my judgment the Employment Appeal Tribunal – and as my Lord in the course of argument has pointed out it is not just Mr Justice Slynn but he and two very experienced members of the Tribunal – came to the conclusion that it was in their words 'impossible to order reinstatement'. Then in the next sentence the judgment continues: 'We are not aware of any other vacancy which the authority would consider suitable for her. Her application for an order for reinstatement is refused.' In my judgment there is no possible way in which that exercise of their discretion by the Employment Appeal Tribunal can be challenged in this case. It seems to me, speaking for myself, an absolutely inevitable conclusion. This legislation is not designed to enable complainants to re-establish their reputation or vindicate their reputation or anything of that kind. It is concerned with whether they were fairly or unfairly dismissed and once a conclusion is reached that they were unfairly dismissed, the question is how reasonably and most sensibly to compensate the unfairly dismissed employee."
We should also cite from Sir David Cairns's concurring judgment, in which he said:
"… When Miss Nothman made her application for leave to appeal, it was dealt with by Mr Justice Slynn on behalf of the Employment Appeal Tribunal in this way. He refused Miss Nothman's application for leave to appeal to the Court of Appeal and said: 'Our decision not to order reinstatement is an exercise of our discretion based on our assessment of the facts of the case. We do not consider that her wish to appeal on the conspiracy issue raises a matter of law; it raises a question of fact.' Those are observations with which I entirely agree …."
[40]The second authority upon which Mr Thornton relied is Wood Group Heavy Industrial Turbines Ltd v Crossan [1998] IRLR 680, where Lord Johnston, delivering the judgment of this appeal tribunal, said this:
"10. … We consider that the remedy of re-engagement has very limited scope and will only be practical in the rarest of cases where there is a breakdown in confidence as between the employer and the employee. Even if the way the matter is handled results in a finding of unfair dismissal, the remedy, in that context, invariably to our minds will be compensation. 11. That general proposition applies to this particular case, even if it be the case that the witnesses asserted, as a matter of generality including fellow employees, there was no animosity likely to be exhibited towards the respondent. We cannot lose sight of the fact that in addition to his general defence of conspiracy, in one of his interviews the respondent asserted positively that a number of other people had been 'out to get him' by reason of incidents in another part of the factory. That does not seem to us to be merely a knee-jerk reaction to specific allegations. All in all, it seems to us there are sufficient factors bearing on the issue of practicability in this case, such as we have rehearsed, to render it impracticable to order re-engagement."
[41]Mr Thornton's submission was that Mr Owolade's allegations of conspiracy against Lambeth rendered reinstatement an impracticable option and that these two authorities showed that it should have been refused. The point was expressly argued before the tribunal. However, although the tribunal recorded (in paragraph 9) that they had been referred to Nothman , they nowhere identified the point that Mr Thornton had made in reliance upon it and nowhere dealt expressly with the impact upon the practicability of reinstatement of the fact that Mr Owolade had advanced his failed conspiracy allegation. Mr Thornton's submission was that this was another example of a failure by the tribunal to address a crucial matter, one which undermined the soundness of their decision that reinstatement was practicable. Mr Thornton went, however, even further. He said the two authorities showed that, once there has been an allegation of conspiracy by the employee, reinstatement will never be practicable. He said that it followed that the tribunal's decision was one which was simply not open to them. He said that we should simply reverse the reinstatement order and substitute an order for an assessment of compensation for Mr Owolade's unfair dismissal.[42]We agree with Mr Thornton that the tribunal's failure to address the conspiracy allegation was a material shortcoming. There was no point in the tribunal simply listing the Nothman case as one to which they had been referred and then making no further mention of it. The Nothman point may or may not have impressed them, but it was plainly a serious point, which required express consideration, and the tribunal's task was to consider why they had been referred to the Nothman case and to deal in their reasons, at least shortly, with the submission that had been based upon it. They failed to do that. That omission gives us no confidence that they gave any consideration to the point.[43]We do not, however, agree with Mr Thornton that the making of the conspiracy allegation automatically foreclosed the making of a reinstatement order. We agree that the Nothman and Wood Group cases show (at the very least) that the making of the allegation was an important matter for the tribunal to consider in the context of the practicability of reinstatement, and we agree that those authorities suggest that in many cases in which such an allegation has been it will usually be impracticable to order reinstatement or re-engagement. We do not, however, read them as deciding that, as a matter of law, the making of such an allegation automatically precludes the making of such orders. We consider that it must always be a question of fact for the employment tribunal whether, in all the circumstances, either reinstatement or re-engagement is practicable; and we consider that the making by the employee of a conspiracy allegation will simply be one of the relevant facts, albeit a very important one, which the tribunal will have to consider.[44]We do not, therefore, accept Mr Thornton's submission that the tribunal's omission to deal with this point entitles us simply to reverse their decision. It does, however, reinforce the need for a re-hearing on the question of remedy. Was it perverse for the tribunal to find (in paragraph 53) that Mr Owolade's department would "welcome him" back?[45]The position on the evidence in relation to this is that Peter Firth gave oral evidence to the tribunal. He was a consultant to Lambeth's Human Resources Section between June 2003 and 2004. He was not therefore involved at the time of the issues giving rise to Mr Owolade's tribunal application, but he gave evidence to the effect that, contrary to Mr Owolade's assertion, Stewart Holton (the Executive Director of Housing), had told him that he had never indicated a willingness to have Mr Owolade back, that his reinstatement would be regarded as damaging to the department and that several senior managers had expressed deep concern about the possibility of his reinstatement. These managers had told Mr Holton that, if Mr Owolade returned, they would feel that their positions would become untenable. Mr Holton's opinion, expressed to Mr Firth, was that Mr Owolade's return to the department would "be a profound distraction from the business of delivering services and that there is a high likelihood that this would lead to a breakdown in the desired levels of service." Mr Holton also gave oral evidence to the tribunal and confirmed what Mr Firth had said to this effect in his statement.[46]In paragraph 20 of their remedy reasons, under the heading "The Evidence," the tribunal said this:
"20. We heard evidence over three days from Mr Owolade and his witnesses Jon Rogers, Sue Simon, Florence Luyiga, Yvonne Faulks and Robert Jackson. We saw a large number of witness statements in a standard form apparently written by [Mr Owolade] and signed by various supporters of his reinstatement as a broad matter of justice. We have to say that because of their form and their failure accurately to address the issue of practicability we could give them little weight. [Lambeth] called Stewart Holton and Peter Firth."
[47]Pausing there, there is nothing in that paragraph to suggest that the evidence of Mr Holton and/or Mr Firth deserved the like "little weight" that the tribunal attached to the statements put in by Mr Owolade. The tribunal then said this about Lambeth's evidence in their subsequent summary of the facts:
"33. Evidence of the above instances [various complaints about Mr Owolade's conduct down to September 2003] was given to us by Peter Firth who had been engaged by [Lambeth] as interim Head of Employee Relations on a consultancy basis between June 2003 and April 2004. Having spoken to the various managers concerned, it was his opinion and that of the Senior Management Board of [Lambeth] 'that the relationship of trust and confidence that should exist between an employee of [Lambeth] and a member of its staff no longer exists and could no longer exist between [Mr Owolade] and [Lambeth] and that such is the antagonism which has been engendered during the course of the proceedings brought about in part by the manner of campaign which has been waged by [Mr Owolade] and his supporters that it would be impracticable to expect that [Mr Owolade] could return to work within the Housing Department or anywhere within [Lambeth]. ' 34. This opinion was supported by the Director of Housing Mr Holton. 35. There was an issue between the parties as to whether Mr Owolade's return would be welcomed by [Lambeth's] staff. In connection with this we found that following his dismissal there had been two one-day strikes by colleagues in the Homelessness Assessment Department but a ballot among Unison members in the housing department had produced a low poll and little support. However, a petition throughout the borough he had produced 14,000 signatures."
[48]In paragraph 37, in dealing with Mr Owolade's case, the tribunal recorded that it included that "his line manager who thinks highly of him wants him back" and in paragraph 50(b) the tribunal appear to have accepted that. The line manager was Mr Gamor, who did not give oral evidence and so could not be cross-examined. On one reading of paragraph 20 of the tribunal's reasons, his statement was one to which they considered they could attach little weight.[49]Mr Thornton's submission to us was that nowhere did the tribunal say that they regarded as untrue the evidence of Mr Firth and Mr Holton about the unwillingness of Mr Owolade's department to have him back. On the contrary, they referred to that evidence in apparently uncritical terms in paragraphs 33 and 34. The findings in paragraph 35 did not undermine their evidence and nor did the finding about the line manager's wishes. Mr Thornton submitted that, against this evidential background, the unexplained finding by the tribunal in paragraph 53 that "[Mr Owolade's] own Department will welcome him" was not just unjustified by the evidence, it was apparently contrary to it. He criticised it as a perverse finding, but it was of course an apparently important one in the balancing exercise that the tribunal carried out in arriving at their decision to reinstate.[50]With some hesitation, we have stopped short of concluding that the tribunal's apparent rejection of Lambeth's oral evidence on this point, and the apparent preference for Mr Gamor's written evidence on it (Mr Gamor also asserting that "all [Mr Owolade's] colleagues that I have spoken to" agreed with Mr Gamor that Mr Owolade's reinstatement "will be viewed as a strength to the council and will boost morale of rank and file"), was perverse. We so stopped since(i) we presume that the tribunal's assessment of the competing evidence before them was that Mr Owolade's department would welcome him back, and(ii) this was not a case in which it is clear to us that there was no evidence at all supporting such a conclusion.[51]We do, however, nevertheless have a serious concern as to how and why the tribunal arrived at that conclusion, being one which they made no attempt to explain. It appears to us that this was a conclusion at which they could only arrive by rejecting material elements of Mr Firth's and Mr Holton's evidence, whereas they made no suggestion that there were doing so. The absence of any explanation as to the basis on which the tribunal made their unqualified finding in paragraph 53 that "[Mr Owolade's] own department will welcome him back" has left Lambeth in a state of ignorance as to why this important finding went against them. Lambeth was entitled to be given at least brief reasons for the tribunal's journey to this conclusion, whereas the tribunal provided none. The failure to do so was an error of law. In our view, that failure provides yet another reason why Lambeth is entitled to a re-hearing. Was the tribunal's decision to order reinstatement perverse?[52]Mr Thornton's submission is that the tribunal's decision to order reinstatement was overall a perverse one. In addition to the criticisms made of Mr Owolade in the reasons for the liability decision, the tribunal referred in their remedy reasons to matters of complaint, or alleged complaint, about Mr Owolade's conduct occurring since the liability hearing. These included a continued attack on Ms Boardman and various complaints about Mr Owolade advanced by other Lambeth employees: by Miss Quest (a senior manager, who complained of harassment, victimisation and targeting by him and his supporters); by Ms Fletcher-Smith (an assistant director, who complained about a threatening remark made to her on 4 August 2003); and by Ms Wallis (who complained of disparaging remarks made Mr Owolade on local radio about her evidence at the liability hearing). We regard it as a little unclear to what extent the tribunal found these complaints to be established, although we infer from paragraph 51(e) (quoted above) that they found that they were.[53]Mr Thornton's submission was that, overall, the tribunal's findings were to the effect that Mr Owolade had conducted himself in an extreme and intolerable way, there had been a complete breakdown in the relationship of trust and confidence as between Lambeth and Mr Owolade and that the only rational disposal of his reinstatement application was to dismiss it. We consider that there is much to be said for that view but the tribunal's principal answer to it was that Mr Owolade's undertaking to behave himself in the future plus the reduction in the likelihood of future confrontational situations as a result of the new procedural framework since adopted by Lambeth ("Zero Tolerance of Discrimination") justified a conclusion that reinstatement was practicable. Can it be said that that decision was perverse?[54]Mr Thornton's submission has caused us some anxiety because, having regard to the history of this matter, including the extreme conduct on Mr Owolade's part, we needed little persuasion that, for example, there was a high likelihood that other tribunals would have come to a different conclusion. That, however, is not the point. A perversity submission requires us to be satisfied that no reasonable tribunal could have come to the decision that this tribunal did. Ms Driver rightly reminded us of the heavy onus that the making of a perversity case casts upon an appellant. We have ultimately come to the conclusion that Lambeth has not succeeded in discharging that onus. The tribunal were fully aware of the background but gave their reasons for their conclusion that "on balance we consider that re-instatement will work" (paragraph 52). Assuming that their approach to the case was otherwise unimpeachable (and we have explained why we consider that in three material respects it was not), we would not be disposed to conclude that their reasons were ones which no reasonable tribunal could regard as justifying reinstatement.[55]Of course, the matters in respect of which we consider the tribunal misdirected themselves include matters which can be said to point away from any reinstatement order (in particular, the "justice" of reinstatement having regard to contributory fault and the conspiracy allegation: the Firth/Holton point is one which requires reasoned findings of fact). Again, however, we have resisted any temptation to place these points in the scales and conclude that they tip the balance against a reinstatement order. We take the view that these are matters which have to be brought into the relevant assessment by the fact-finding tribunal. We are not that tribunal.[56]We conclude, therefore, that this is not a case in which we either can or should simply reverse the tribunal's decision to order a reinstatement. We consider that the proper course for us to adopt is(i) to allow Lambeth's appeal;(ii) to set aside (a) the order for reinstatement and (b) the consequential order for the payment of arrears of pay under section 114(1(b) of the ERA ; and(iii) to direct a re-hearing of the question of remedy for Mr Owolade's unfair dismissal.[57]We had a predictable debate as to whether the remission should be to the same tribunal or to a freshly constituted one, with both sides adopting predictable positions. Mr Thornton submitted that this is a case in which the best justice will be done by remitting the matter to a freshly constituted tribunal. Ms Driver submitted, in an emotionally charged concluding address, that Mr Owolade's only prospect of justice on a rehearing would be if the matter were remitted to the same tribunal.[58]We recognise that a re-hearing by the same tribunal could be disposed of more quickly and cheaply, because that tribunal has already heard the evidence and a re-hearing might require no more than making of renewed submissions on that evidence. In addition, the passage of time since the matter was before the tribunal is not so great that they will be likely to have forgotten all about the matter. These are factors which point towards a remission to the same tribunal. But we have the gravest concern as to whether so to remit the matter would achieve the best justice. Even though such a remission would save costs, justice is not always to be measured by reference to such savings.[59]The real concern that we have is twofold. First, we consider that the approach of the tribunal to the reinstatement issue was materially flawed. The tribunal failed to make a proper assessment of the Holton/Firth evidence and failed to give any reasons for their apparent rejection of it; they failed to deal with the consideration raised by section 116(1)(c) of the ERA ; and they failed to deal with the conspiracy point. In short, they mishandled the matter and we do not consider it fair to the successful appellant to require it to undergo a re-hearing before a tribunal which has been the subject of such criticism. Secondly, the tribunal have already made up their mind on the question of reinstatement, and there must be at least a real risk that they will be influenced by what Burton J referred to as the "very real and very human desire to attempt to reach the same result, if only on the basis of the natural wish to say 'I told you so.'" ( Sinclair Roche & Temperley and Others v Heard and Another [2004] IRLR 763 , paragraph 46.5). Mr Thornton's concern is that this tribunal may be so influenced. We infer that Ms Driver's submission reflected Mr Owolade's hope that they would be.[60]We have come to the conclusion that these two considerations outweigh the time and costs savings that will be achieved by a remission to the same tribunal. We are concerned to achieve an order which will achieve the best justice for both parties. We have concluded that if the question of remedy is heard afresh by a differently constituted tribunal, better justice is likely both to be done and to be seen to be done. We will remit the question of remedy for re-hearing by a differently constituted tribunal. The cross-appeal[61]The cross-appeal is by Mr Owolade against the award of £5,000 compensation for injury to his feelings. He had originally claimed £1m compensation although by the time of the hearing before the tribunal he had moderated his claim to £75,000. The tribunal recorded, in paragraph 47, that they had had the benefit of no evidence or submission supporting the revised claim and that Ms Driver made no separate submissions on it. They referred, in paragraph 43, to the fact that they had themselves made it clear that the claimed compensation was for "the single act of victimisation" which was "one act in response to the foolish and unwise act by [Mr Owolade]." The tribunal dealt with the claim in their reasons as follows:
"56. … Mr Owolade told us he was shocked by his dismissal and particularly hurt that it was occasioned because, as a trade union official and a black man himself, he was defending the rights of black colleagues. By our decision on [ sic ] his favour we recognise that his actions were within the statutory protection of union officers and those who allege discrimination. It is therefore a serious and hurtful act to dismiss him. 57. But we and the inquiry have commented upon the lack of wisdom in some of his behaviour and he cannot have been entirely surprised that [Lambeth] would at least discipline him for it. We take further account of the fact that this was a single event and that, as matters have turn [ sic ] out there has been no pecuniary loss. 58. This is not at the lowest end of the scale but it is by no means as serious as many we have seen. We assess the correct sum to be £5,000. 59. Interest is payable on that figure from the date of dismissal until today at 7% until 28 February 2002 and at 6% thereafter …."
[62]In support of the cross-appeal, Ms Driver sought to put before us certain fresh evidence in the nature of two medical reports on Mr Owolade. One was a letter dated 26 November 2004 from Dr Winter of the Palace Road Surgery to the effect that Mr Owolade "had presented in March 2001 with stress-related problems and not sleeping". Dr Winter said Mr Owolade had been prescribed an antidepressant in March 2001 to help with his sleep problems and that he was currently "under the care of the psychiatrist at the Maudsley Hospital and is taking an antidepressant (Cipralex)." He suggested that Mr Owolade's employment problems must at least have contributed to his current depressive state. The other was a letter dated 26 November 2004 from Dr Rifkin, a consultant psychiatrist with the South London and Maudsley NHS Trust. Dr Rifkin first saw Mr Owolade on 8 November 2004. He explained that although before then Mr Owolade had become depressed, had developed sleep and appetite disturbance and had suffered from diminished energy and motivation, the course of Citalopram on which his general practitioner had put him had resulted in a marked improvement in his mood, so that he had become less depressed, less angry and irritable, was eating and sleeping better and had more energy.[63]We refused to allow the further evidence to be adduced for reasons we said we would give in this judgment. We now do so. The evidence is of a somewhat superficial nature, but we understand the point of it to be that Mr Owolade's dismissal has had a depressive effect on him, which is still continuing albeit that his course of treatment since October 2004 has resulted in a general improvement. The problem in the way of adducing this evidence on this appeal is, however, that no medical evidence was put before the tribunal. If it were of any relevance, evidence as to the effect of Mr Owolade's dismissal on his mental well-being could have been put before the tribunal but it was not. The tribunal, therefore, made their decision on the quantum of compensation on the basis of material which did not include any medical evidence. To the extent that the new evidence is directed at painting a medical picture that could have been painted before the tribunal but was not, it fails to overcome the first of the trio of principles identified in Ladd v Marshall [1954] 1 WLR 1489 as to the admission of fresh evidence on appeal, being principles which apply equally to the admission of fresh evidence on appeals before this appeal tribunal. To the extent that the fresh evidence is merely directed at updating the position as to Mr Owolade's medical condition, it is directed at updating a picture which formed no part of Mr Owolade's case before the tribunal. Our task on the cross-appeal is to consider whether the tribunal erred in law in making the award of compensation for the injury to Mr Owolade's feelings that it did. We are unconvinced of the relevance of the fresh evidence, since the award under appeal was for injury to feelings, not for psychiatric injury, but we will say simply that the attempt to adduce it appeared to us to be little other than an attempt to adduce material in support of a case that was not made before the tribunal, but could have been. As a matter of discretion, we therefore refused to allow the new material to be adduced in evidence.[64]In support of the cross-appeal, Ms Driver pointed out that the tribunal found that Mr Owolade's dismissal was "serious and hurtful" (paragraph 56). She submitted that it was particularly so in the present case, because the injury caused by the dismissal represented very much more than the tribunal recognised. Her point was that Mr Owolade was a man who had devoted his life to the cause of his local community. She said he was and is an inspiration to that community, which sees him as reflecting what is best and strongest in them. His dismissal, in the course of the discharge of his duty to them, therefore represented an injury not just to him but also to them. The case was, therefore, an exceptional case which deserved an exceptional award.[65]Ms Driver did not persuade us that there is any basis upon which we can properly interfere with the tribunal's award of compensation. The leading case is the decision of the Court of Appeal in Vento v Chief Constable of West Yorkshire Police (No. 2) [2003] IRLR 102 . In paragraphs 65 to 68 of the judgment of the Court, delivered by Mummery LJ, the Court said this:
"65. Guidance Employment tribunals and those who practise in them might find it helpful if this court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury. (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 race or sex. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feeling 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. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings. 66. There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case. 67. The decision whether or not to award aggravated damages and, if so, in what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled. 68. Common sense requires that regard should also be had to the overall magnitude of the sum total of the awards of compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage. In particular, double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage. The extent of the overlap will depend on the facts of each particular case."
[66]The tribunal had that guidance well in mind. They pointed out, in paragraph 43, that "There was nothing of the persistent or serious nature which took it [the discrimination] into the middle or higher bands of Vento and it should be met with an award within the lower band." Their award of £5,000 was in fact the top award within that band, reflecting that they regarded the case as less serious than those which merit an award in the top two bands, but as sufficiently serious to be regarded as on the boundary between the lower and middle bands.[67]In our view, the appropriate compensatory award was pre-eminently a matter of judgment for the tribunal. We would only be justified in disturbing their award if we were satisfied that it was perverse, i.e. as one to which no reasonable tribunal could come. Ms Driver's submission was that the case was not just a very serious one, it was so serious as to merit an award three times larger than the maximum that Vento indicated should normally be reserved for the most serious cases, Vento also indicating that "only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000."[68]With respect to Ms Driver, we regarded her submission that this case merited an award of £75,000 compensation as an impossible one. There is no rational basis for the suggestion that the compensation recoverable by Mr Owolade should be assessed in the light of the suggested injury to the feelings of others flowing from his dismissal. The function of the tribunal was to compensate him for the injury to his feelings and the tribunal did so, assessing the case to be meriting compensation at the top of the lower band. There was nothing irrational or perverse about that decision. We dismiss the cross-appeal. Result[69]We allow Lambeth's appeal and set aside(a) the order for reinstatement and(b) the consequential order for the payment of arrears of pay under section 114(1(b) of the ERA . We direct a re-hearing before a differently constituted tribunal on the remedy for Mr Owolade's unfair dismissal. We dismiss Mr Owolade's cross-appeal.