MR R FLETCHER-COOKE v THE BOARD OF GOVERNORS OF HAMPTON SCHOOL [2007] UKEAT 0366_06_1502

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0366_06_1502Case No Appeal No. UKEAT/0366/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R FLETCHER-COOKEAPPELLANTTHE BOARD OF GOVERNORS OF HAMPTON SCHOOLRESPONDENT
Before
His Honour Judge ReidDate 15 February 2007
[1]APPEARANCES For the Appellant MR D CRAIG (of Counsel) Instructed by: Messrs Mishcon de Reya Solicitors Summit House 12 Red Lion Square London WC1R 4QD For the Respondents MISS J McNEILL (one of Her Majesty's Counsel) Instructed by: Messrs Farrer & Co Solicitors 66 Lincoln's Inn Fields London WC2A 3LA SUMMARY Disability Discrimination - Compensation Appellant claimed that the Employment Tribunal had applied the wrong test (balance of probabilities, rather than loss of chance) in assessing future losses in a disability discrimination case. It had also failed to make an award for loss of BUPA membership. Held: the Employment Tribunal did not apply the wrong test and there was no evidence in relation to the BUPA claim. The cross-appeal relating to mitigation of loss, perversity and aggravated damages also failed. HIS HONOUR JUDGE REID QC This is an appeal ("the appeal") by the Claimant, Mr Fletcher-Cooke, against the Judgment of the Employment Tribunal held at London South following a remedies hearing comprising six days of evidence in January 2006, submissions on 22 March 2006, and two days deliberation in chambers in April 2006. The Tribunal sent its decision to the parties on 12 May 2006. The Respondents, the Hampton School ("the School") and its headmaster Mr Martin, cross-appeal ("the cross-appeal"). The remedies hearing followed a hearing on liability lasting 13 days at which the Tribunal found (amongst other things) that the Claimant had been subject to a number of acts of discrimination at the hands of the Respondents, including being unfairly dismissed because of his disability. The decision was announced orally by the Tribunal in September 2004, but the written reasons were not sent to the parties until 9 June 2005. The Tribunal's Judgment on liability was not subject to appeal.[2]The Claimant was employed by the School as a maths teacher from September 2001. He first became ill in November 2002, although he continued to work for a short while after his GP had certified him unfit. He was, however, absent from work from November 2002 until he was summarily dismissed on 4 July 2003. He had indicated he intended to return in May 2003 at a time he was still certified as unfit.[3]His previous history, in brief, was as follows: he began his working life as a civil servant at which he worked in total for 15 years. He left the Foreign Office and commenced employment as a teacher in 1988 at RGS, Guildford, initially teaching religious studies until he took a year of absence at the end of the 1993-1994 academic year, resigning from that job in around March or April 1995. The Claimant then took up a post in January 1996 at King's College School, Wimbledon where he taught until August 1997. He next took up a post teaching Latin at Rokeby in September 1997, where he was unhappy. He resigned in January 1998 in part because he believed he really wanted to teach maths, but in fact he stayed at Rokeby until the end of the academic year because a colleague fell ill. He was then aged 46. This was the first time that he had resigned from a job without another job or training course to go to. In September 1998 he began a temporary part-time post as a maths teacher at Queen's Gate School. The Claimant then obtained a permanent maths post at Colfe's School in south-east London, where he worked from September 1999 until August 2001 when he joined the School. The Claimant only ever taught at independent schools.[4]From around 1989 he has suffered with bipolar II disorder, although this was not properly diagnosed until March 2004. Until then the Claimant had been treated medically as if he suffered only with depression and therefore was medicated almost entirely with anti-depressants, until the Claimant commenced Tegretol (a medication for bipolar II disorder) in 2004 which it is said has benefited him considerably. On a number of occasions over the period of his employment as a teacher he expressed dissatisfaction with teaching to his doctors. Those expressions of dissatisfaction were not to be treated at face value: they reflected the fact that he was unwell when he made the comments, but the Tribunal clearly formed the view that these expressions of dissatisfaction were of genuine substance.[5]The Remedy Hearing did not take place until early 2006 because one of the Tribunal members was unwell. The Tribunal awarded the Claimant:(1) £17,000 for injury to feelings;(2) £7,500 for aggravated damages;(3) £2,000 for personal injury;(4) loss of earnings from July 2003 until September 2007;(5) a basic award for unfair dismissal of £780;(6) a sum of £250 for loss of statutory rights;(7) interest.[6]The Tribunal dismissed other elements of the Claimant's claim, including a claim for the cost of BUPA cover. The issue of pension loss currently remains outstanding.[7]The Claimant's Appeal was put under six heads. They were:(1) The Tribunal had taken the wrong approach to the assessment of future losses.(2) The Tribunal had failed to deal with the question of the Claimant's earnings in future employment.(3) The Tribunal had made a number of erroneous findings of fact.(4) The Tribunal had failed to give adequate reasons in certain respects given the evidence and submissions before it.(5) The Tribunal had erred in failing to make an award in respect of medical expense insurance.(6) The Tribunal erred in failing to award interest in respect of past loss of earnings.[8]This last point can be summarily disposed of. The Tribunal did not award interest on past loss of earnings. The parties are agreed that this was an oversight and that the Tribunal has since confirmed at a Case Management Discussion that it intended that interest should be awarded. The Respondents had made it clear to the Claimant that it accepts a liability to pay interest on past losses and, indeed, had already paid interest within the sum already paid in respect of past losses. In those circumstances we need say no more about this ground of appeal. If and so far as necessary, the matter can be dealt with by the Tribunal under the slip rule.[9]By the cross-appeal the Respondents contended that the Tribunal had erred in five respects.(1) It had applied the wrong legal test in determining whether the Claimant had taken reasonable steps to mitigate his loss.(2) The Tribunal was wrong to award loss of earnings after 2005 having held that by that time the Claimant would have left the School.(3) The Tribunal was wrong in finding that the Claimant would not in any event have been summarily dismissed for representing he was fit to return to work when his doctor had certified he was unfit and/or misrepresenting his fitness to return to work.(4) The Tribunal erred in law in awarding aggravated damages.(5) The Tribunal erred in law in awarding interest on the damages for psychiatric injury at 3 per cent rather than 2 per cent.[10]Again, the last point (which has a value of about £55) can be dealt with summarily. The Respondents abandoned this point. The Respondents' approach to interest for general damages for pain, suffering and loss of amenity reflects that in the County Court. However, unlike the County Court, the Tribunal is bound to award interest pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The starting position pursuant to those Regulations is that interest should have been awarded on the award for personal injury at the rate of 6%. That was the Special Investment Account rate at the relevant time, and pursuant to regulation 4(i)(b) interest would fall to be awarded at that rate on the award of compensation for personal injury. However, regulation 4(i)(b) also provides that interest on such a sum should be taken from the mid-point date and end on the date of calculation (i.e. 6 per cent for half the period). This equates to 3 per cent for the entire period, which is what the Tribunal correctly awarded.[11]In dealing with these various points it is necessary to recall that Judgments of an Employment Tribunal should not be subjected to the type of minute analysis which has been applied by both parties in this case both in their elaborate written submissions and in their lengthy oral arguments. The decisions are not intended to be "an elaborate formalistic product of refined legal draftsmanship": see Meek v City of Birmingham District Council [1987] IRLR 250 . In construing the reasons of a Tribunal at appellate level, the guiding principle is that, if the Tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law: see Jones v Mid-Glamorgan County Council [1997] ICR 815 at 826.[12]The principal basis of the Claimant's appeal was that the Tribunal erred in law in its approach to the assessment of the Claimant's future loss by applying a balance of probabilities test (appropriate to a finding of primary fact), rather than a percentage chance test (appropriate to the evaluation of a loss) to its assessment when considering the Claimant's prospects of obtaining employment in the future. The Employment Tribunal, it was said, found that on a balance of probabilities the Appellant would find alternative employment by August 2007 and accordingly determined that the Appellant was not entitled to recover any loss after that date. It was submitted that this was a fundamentally wrong approach because it treated as a certainty what it viewed as simply being more likely than not.[13]The Tribunal correctly stated that the "correct measure of damages is based on the principle that, as best as money can do it, the Claimant must be put in the position he would have been in but for the unlawful conduct of the Respondents in discriminating against him": see para 122 of the Judgment and see Ministry of Defence v Cannock [1994] ICR 918 (EAT, Morrison J) at p.935H-936A, approved in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 . In doing so it sought to apply section 17A(3) of the Disability Discrimination Act 1995 which provides:
"Where a Tribunal orders compensation under subsection (2)(b), the amount of the compensation shall be calculated by applying the legal principles applicable to the calculation of damages in claims in tort..."
As the Claimant put it in his skeleton argument:
"The Respondents had to take their victim as they found him and to compensate him for the loss which flowed naturally and directly from the wrongful act (see, e.g., Essa v Laing [2004] ICR 746 CA)."
[14]The Claimant's primary case in relation to remedy before the Tribunal was that he would have continued in employment as a teacher until the age of 64. Part of the Tribunal's task, it was submitted, therefore involved an assessment of compensation by reference to uncertain future events. This involved a fundamentally different task to the making of findings of fact, because it required the Tribunal to make an assessment of the chance that a future loss would be suffered and to reflect that chance in its assessment of compensation.[15]The correctness of this approach was not in issue between the parties and it is therefore not necessary to deal with the authorities relied on by the Claimant: Mallett v McMonagle [1970] AC 166, especially per Lord Diplock at p176F, Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 , especially per Stuart-Smith LJ at 1610B, Council of the City of Sunderland v Newsome UKEAT/36/O2/ST (unreported), per Rimer J, especially at para. 16.[16]The area of dispute lay really in whether the Claimant was right in asserting that the Tribunal then had to make findings as to the percentage chances of certain events occurring. In our view the Respondents were correct in their submissions on this point. The estimate of chances does not have to involve applying percentages to each head of loss. In many cases, a future loss of earnings will be assessed by using a "career model": assessing what the Appellant would have earned but for the tort (in this case, discrimination) and to take away the sum which he could earn if he takes reasonable steps to mitigate his losses: see Herring v Ministry of Defence [2003] EWCA Civ 528 , and Brown v Ministry of Defence [2006] PIQR Q123, paras 21 to 26. The exercise involves determining the extent to which the Claimant's earning capacity has been diminished by a tortious act. This is likely to be an uncertain process.[17]The Claimant attacked the Tribunal's assessment of future loss on the basis that, notwithstanding it had set out the law correctly, when it came to applying the law it simply looked to the balance of probabilities test. He latched onto one passage in paragraph 148 of the Judgment:
"The Tribunal did not accept that [the Claimant] who, aside from the consequences of his disability, was fit and healthy was totally unemployable until the age of 60 or 65. It was not for the Tribunal to require [the Claimant] to take up any particular employment, but the Tribunal had to assess whether he could do so in the future, on the balance of probabilities, and whether the discrimination caused a total loss of employability for that period"
. This, he said, demonstrated that the Tribunal (despite its avowed application of the correct test) had applied the wrong test.[18]In our judgment this is not so. In our view this submission is based upon a false premise. The Tribunal found that it was likely that he would have left the School of his own accord "by 2005 at latest". (The Claimant is in error in his submission that the Tribunal found he would have left the School in 2005). This was based on the following findings(1) before the events in issue he had already started to look for another post: he had applied to Colet Court within months of taking up his post and for three other jobs by August 2002,(2) (on the balance of probabilities) he would not have settled at the School,(3) his hopes of progression at the School were unlikely to be met,(4) he was no more settled after he started to teach maths than he had been before,(5) he had a history of short employments, although "it was now possible that [his restlessness] might be less of a factor in the future." In the light of these findings the Tribunal was quite entitled to regard the Claimant as something of a rolling stone, seldom long satisfied with his lot. These factors did not conclude in a finding on the balance of probabilities that he would have left "in 2005", but "by 2005 at latest."[19]The Tribunal was making a finding, as it was fully entitled to do, on its findings of fact, that there was no realistic chance that the Claimant would still be at the school after 2005. Contrary to the submission of the Claimant, the factual matters found entitled the Tribunal to come to the conclusion which it did. In doing so it was making "the best assessment that [could] be made on the relevant material available to the court", to use Mummery LJ's words in Vento at para 33. Even assuming, in favour of the Claimant, that the Tribunal was in error in using the balance of probabilities test in looking to see whether he was "totally unemployable to the age of 60 or 65", that error did not infect the earlier finding that he would have left the school by 2005 at latest.[20]The Claimant is further in error in submitting that the Tribunal found that "on a balance of probabilities the Appellant would find alternative employment by August 2007". That was not a finding made by the Tribunal. It was also submitted that it was apparent that the Tribunal had in mind that had he left Hampton School in 2005 he would have done so with another post to go to. That submission is an impermissible gloss on the findings, apparently based on two factors:(a) that there was evidence that he had only once left a job without another job or a course to go to, and(b) that the Tribunal awarded him full loss of earnings till the end of August 2007. This is not, in our view, a correct reading of the decision.[21]The basis upon which the Tribunal awarded his full pay up to the end of August 2007 was expressly spelt out at paragraph 147. "The Tribunal considered that the Claimant was entitled to recover his full loss of earnings however until the end of August 2007 as this reflects the damage to his prospects brought about by the discrimination and attendant matters such as the failure to provide a reference. This also took into account a period within which [the Claimant] could be expected to secure additional qualifications to enhance his applications, such as training to teach the full range of maths subjects in an independent secondary school, or to secure employment in a different type of school." Because of the finding he would have left by the end of 2005 at latest, the question of what his earnings would be thereafter was irrelevant except to the extent that his earning capacity was reduced by the Respondents' tortious acts. Thus, having dealt with the question of the damage to his prospects and compensation for that damage, the question of what he might thereafter have earned until retirement was irrelevant.[22]In our judgment the method adopted was a proper method of assessment which was open to the Tribunal. It made an unimpeachable finding that the Claimant would have left the school by 2005 at latest and then went on to assess what damage had been done to his earning capacity by the discrimination which he had suffered. The Claimant was not to be compensated only to the extent that the dismissal made it more difficult for him to find work than would have been the case had he not been dismissed. He was to be compensated for the loss that flowed from the discriminatory dismissal. The Tribunal did, as the Claimant submitted it should have done, assess compensation on the basis of the loss that had been caused by his discriminatory dismissal, taking into account the extent to which the discrimination had made it more difficult for him to find work.[23]This exercise necessarily involved a judgment of matters not capable of mathematical evaluation. It had to be a fairly rough and ready decision based on the evidence that the Tribunal had before it and the impression that the evidence and the Claimant as a witness left upon it. The Tribunal's assessment of this was that the damage to his prospects by the discrimination and allied matters, such as the failure timeously to provide a reference, were properly compensated by an award of his full wages up to the end of August 2007, that is to say, for two years after the latest time at which it was found he would have left the school.[24]The Claimant complains that this finding is not supported by adequate reasoning. In our judgment that is not so. The Tribunal identified a number of factors which enabled it to make the finding both insofar as it depended on the finding that he would leave by 2005 at latest and insofar as it depended on the way in which he conducted himself in seeking further employment. There was no need for a more elaborate exposition. In the light of these findings the Tribunal correctly did not feel the need to make any findings as to the likely level of the Claimant's future earnings.[25]This effectively disposes of the first two of the Claimant's grounds of appeal. There remain connected with those grounds two further grounds: an assertion that the Tribunal failed adequately to address arguments put to it and alleged erroneous findings of fact. To an extent these complaints have already been disposed of above. The attack on the lack of reasons depends on the failure of the Tribunal to deal with the Claimant's potential loss of future earnings after August 2007. For the reasons already given there was no need for the Tribunal to do so.[26]There were, however, a number of attacks on individual findings of fact which it was suggested undermined the finding that he should be compensated only up to August 2007.[27]The first of these relates to the finding at paragraph 144:
"There had been a persistent level of interest in employing him, as evidenced by the responses to his applications and offers of interview, albeit that actual job offers were thin on the ground."
It is complained that this was inaccurate, in that job offers were thin on the ground to the point of being non-existent. That there were no actual job offers was common ground, but it does not seem to us that the Tribunal's use of colloquial language amounts to an error of fact. Then it is said that there was no persistent level of interest in employing him. It was pointed out that his greatest level of success in obtaining interviews was shortly after his dismissal and that the longer he was out of a job, the more the prospects of finding work diminished. This does not suggest an error on the part of the Tribunal: there had been considerable interest. The Tribunal did not suggest that the level of interest persisted. In any event, even if these "errors" had been made out, they would not have impacted the findings as to the date by which he would have left the school or the effect of the Respondents' tortious acts.[28]There are two further supposed errors of fact relied on. They were said to be in paragraphs 98 and 100 of the Judgment. In each case, in our judgment the Claimant is simply trying to re-run an issue of fact.[29]So far as paragraph 98 was concerned, there was a finding of fact that "it was essential that the school at which he worked was high status in his terms". This was attacked on the basis that he had applied to schools of many different types. This was said to falsify the finding of fact. It did not. The Tribunal which saw the Claimant giving evidence at length found that:
"many of [the applications he made] were made, either by [his] admission or on the balance of probabilities, with no serious intention of pursuing the particular job or accepting it if offered."
The paragraph has to be read together with paragraph 99 which dealt with the bizarre way in which the Claimant made many of his job applications (eg being unaware of the name of the headmaster to whom he was applying, addressing a female head as male and failing to mention in one application (to Queen's Gate) that he had previously taught at the school).[30]In paragraph 100 the Tribunal made findings as to categories of job he would not be prepared to accept. The categories included jobs in sixth form colleges. It is said that the evidence did not support this finding in that he would have been prepared to work in such establishments, though it was accepted that in some cases he had made applications merely to "test the market". This again was an issue of fact on which the Tribunal were entitled to make a finding and did so.[31]There remained an attack on paragraph 65 which is criticised because it refers to the Claimant looking for another job within months of starting at Queen's Gate School without referring to the fact that his contract there was a temporary post. There seems to be little substance in the point. It does not appear he made any effort to have his tenure at the school prolonged.[32]It follows that the attacks on the decision as incorporating relevant errors of fact fails. The remaining head of appeal relates to loss of BUPA cover.[33]The Tribunal refused to allow any sum for loss of BUPA cover. The finding at para 138 was that:
"The Claimant gave no evidence which would support a claim for loss under this head. There was no evidence that any substitute cover had been taken out by the Claimant. Nor did the evidence support entitlement to a future loss of replacement medical insurance."
The notice of appeal asserted that:
"In fact there was evidence before the Tribunal was that the Claimant had taken out replacement BUPA cover from early 2006. The Claimant accordingly should have been compensated for that loss from early 2006 onwards."
[34]This was incorrect. There was no such evidence before the Tribunal. The Claimant had been entitled to BUPA cover when he was employed by the School and there were documents in the trial bundles relating to health insurance cover, but the Claimant adduced no evidence on the subject. There was no evidence that he had either taken out alternative cover or had paid any private medical costs, nor was there any evidence as to what the cost of alternative cover would have been.[35]The Claimant at the hearing sought to argue (without amendment to the Notice of Appeal) that BUPA cover was a benefit that he had lost as a result of the termination of his employment and he should be entitled to it up to the date of hearing, if only on the basis that the value of having the benefit - i.e. for peace of mind - was worth a sum which was best quantified by the amount that it in fact cost. He referred to Shove v Downs Surgical plc [1984] ICR 532, especially at 538G and 539G). We were also referred to Knapton v ECC Card Clothing Ltd [2006] IRLR 756 in which, by reason of their unfair dismissals, employees had lost the benefit of life assurance cover but had not taken out replacement cover as at the date of the Tribunal hearing. The EAT upheld the Judgment of the Tribunal that the employees should not be entitled to any compensation up to the hearing date because the risk covered had not occurred and the employees had therefore suffered no financial loss, but also upheld the Tribunal's Judgment that the employees were entitled to be compensated for their future loss of life cover by a payment to cover for the cost of life assurance in the future. On an analogous basis, it was submitted that at the very least the Tribunal should have held that the Claimant was entitled to compensation for the future cost of BUPA cover until such time as the Claimant would have received an equivalent benefit in any new employment, which (on the Tribunal's findings) have been no earlier than September 2007.[36]In our view the Tribunal was entitled to take the view which it did in the absence of any evidence before it. The "peace of mind" point was clearly never argued below and there was no reason why the Tribunal should have awarded any sum in respect of future loss in the absence of evidence on the subject. The very different arguments advanced at the appeal hearing were not, in any event, open to the Claimant on his Notice of Appeal, but even if they had they been, they would have been unsuccessful.[37]So far as the cross-appeal is concerned, apart from the short point already dealt with, there were four issues raised:(i) an alleged error of law in relation to the threshold which a defendant has to meet in order to establish that a Claimant has failed to take reasonable steps to mitigate his/her loss;(ii) an alleged failure to make findings of fact or to give sufficient reasons as to the date when it became unreasonable for the Claimant to pursue alternative employment on a narrow basis and to fail to seek further qualifications and as to why the Claimant sustained a loss of earnings after 2005 when he would have left the School in any event and irrespective of the discrimination;(iii) the findings as to the consequences of the Claimant's alleged representation that he was fit to work in May 2003 when he was not and(iv) an appeal against the award of aggravated damages.[38]The Respondents' challenge to the Tribunal's finding in relation to mitigation relates to paragraph 103 of the Remedies Judgment. The Tribunal held that the evidence that the Claimant applied for numerous jobs for which he did not meet the "person specification" (and even obtained an interview in one case) did not assist the Respondents' argument that the Claimant had failed to mitigate his loss. The Tribunal went on: "There was not a single job that the Respondents could demonstrate the Claimant would have been appointed to had he applied for it".[39]The Respondents submitted (correctly) that there is no requirement to be able to identify such a job in order to succeed in an argument that a Claimant has failed to take reasonable steps to mitigate loss, but this is of little assistance to them by itself. The Tribunal had continued its Judgment with the sentence:
"The evidence [i.e. that the Claimant had applied for numerous jobs for which he was not qualified] remains relevant however to the general picture concerning the Claimant's future loss."
It was not saying that it was a prerequisite of the Respondents succeeding in establishing a failure to mitigate loss that they should have identified a job the Claimant would have got had he bothered to apply. The point was made only as a balancing factor against the criticism that the Claimant had applied for jobs he had no hope of getting. It was a factor in considering whether the Claimant had properly sought to mitigate his loss and in considering the effect on any failure to take proper steps to mitigate.[40]The submission then went on to criticise the way the Tribunal dealt with the law on mitigation at paras 123 to 125 of the Judgment. The Respondents suggested that the Tribunal failed to apply the principle in Archbold Freightage Ltd v Wilson [1974] IRLR 10 in which the National Industrial Relations Court stated that the test for mitigation of damage was to act reasonably. In our judgment, the Tribunal did not apply any different test. It had been referred to Gardiner-Hill v Roland Berger Technics Ltd [1982] IRLR 498, in particular per Browne-Wilkinson J at para. 12. It cited Fyfe v Scientific Furnishings Ltd [1989] ICR 648 and Wilding v British Telecommunications plc [2002] ICR 1079 per Sedley LJ at para 55, and concluded in accordance with the cases it had just cited:
"The Respondents must establish therefore not that it would have been reasonable for the Claimant to have taken a particular step; but rather that it was unreasonable for him not to have done so. As set out by the Court of Appeal in Wilding , reasonableness depends on all the circumstances, including the individual circumstances of the claimant."
The Tribunal was applying the correct test and correctly stating where the onus of proof lay.[41]The Respondents submitted that the Tribunal should have made a finding that the Claimant had not taken reasonable steps to mitigate the loss consequent on his dismissal and should then have found on the balance of probabilities whether he would have found alternative work.[42]The Tribunal was, as the Respondents observed, very critical of the efforts made by the Claimant to obtain other employment, but paid regard to the Respondents' submissions about the unreasonableness of the Claimant's approach to finding alternative work. However, the Tribunal made clear findings applying the law correctly, plainly having regard to the overall nature of the Claimant's behaviour in his search for alternative employment and, in particular, his failure to seek a PGCE qualification or other qualifications which would have enhanced his employability and the nature of the posts he chose to apply for and not to apply for. It held that the Respondents had not established on the Claimant's part any failure to mitigate his loss so far as the past was concerned. The Tribunal found, as it was entitled to do, that it was not unreasonable for the Claimant, in the aftermath of his dismissal, to consider seriously only a narrow range of jobs but that as time passed this became unreasonable, as did his idiosyncratic approach to making job applications.[43]The Tribunal "accepted the points made by the Respondents in the second submission under the heading failure to mitigate, to the extent that these points applied to the future". In our judgment, this was all the Tribunal needed to say on the topic in the circumstances of the case. There was no need for it to specify a precise point of time at which the Claimant's attitude became unreasonable. It did not say, contrary to the submission of the Claimant, that the unreasonableness started only at the date of the hearing.[44]The reason why, in the circumstances of the case, it did not need to specify a precise date was that it found:(a) that he would have left the school by 2005 at latest, and(b) the award of full earnings until August 2007 reflected the damage to his prospects brought about by the discrimination. Having decided that a sum equal to his remuneration to that date compensated him for the loss suffered by the Respondents' tortious acts, and that no sum should be awarded in respect of any period after that date, there was no need to make a finding as to the precise date as at which the Claimant's failure to take reasonable steps to mitigate would have kicked in. It follows that we take the view there is no substance in the Respondents' first point.[45]The Respondents' second point related to the award of future earnings to August 2007, which it was said was not adequately explained in the reasons. As the Respondents pointed out in their skeleton argument, the well-established statements of the law in the employment context - for example, in Meek v City of Birmingham DC [1978] IRLR 250, at para 8 - show that reasons should:
"contain an outline of the story which has given rise to the complaint and a summary of the tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost... "
. The Respondents accepted that "With the minor exception of those limited points which are the subject of the Cross-Appeal, the Judgment amply meets these standards." In our judgment, the Tribunal met the standards in relation to this point as well.[46]The Respondents accepted in opposing the Claimant's appeal that:
"the [Tribunal's] analysis to the effect that it must evaluate 'damage to his prospects brought about by the discrimination' is an analysis which correctly summarises the exercise which the ET was required to carry out."
This was what the Tribunal did and why it fixed on the award of wages till the end of August 2007. In doing so it expressed itself as relying on the damage done to his prospects by the discrimination and "attendant matters such as failure to provide a reference." The Tribunal then went on to say that this "also took into account a period within which [the Claimant] could be expected to secure additional qualifications to enhance his applications." This was something which the Tribunal was entitled to take into account. It was clearly, in the view of the Tribunal, something which was (contrary to the submission of the Respondents) "discrimination-related" in that it was something required to counter the effects of the Respondents' discrimination. There is therefore nothing in this second point.[47]The Respondents' third point related to the Tribunal's rejection of the Respondents' submission that, even if the Claimant had not been unfairly dismissed on discriminatory grounds, he would inevitably have been dismissed for gross misconduct, i.e. his misrepresentation in representing he was fit to work in May 2003 and trying to return to work when his doctor had certified him unfit. It was said this rejection was perverse and that the Tribunal failed to give reasons for rejecting the headmaster's evidence on the point.[48]It is common ground that an allegation of perversity has a very high threshold to meet. Such a case should only succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law, would have reached; even in cases where the EAT has grave doubts about the decision of the Tribunal it must proceed with great care (see Yeboah v Crofton [2002] IRLR 634 CA at para. 93).[49]The findings of fact were that the Claimant was issued with a med 3 certificate by his GP on 14 May 2003. The Claimant's evidence, which was accepted by the Tribunal, was that he did not send it to the school because, as he had done in November 2002 (when he had also been advised to refrain from work by his GP but continued to work), he considered he could determine whether he was fit enough to attend work. The Tribunal found that the Claimant genuinely considered that he was fit to work and that he could best decide whether he could work. He preferred to see how he got on and if it transpired that he could not manage, he would then have sick leave supported by the certificate.[50]The Tribunal took the view that the Respondents, on being told of the Claimant's intention to return to work after such a long absence, should have required him to produce a certificate showing that he was fit to work. It also took the view in the light of the facts that:(a) he was in any event fit to return to work at the beginning of June, and(b) he had worked whilst certified unfit in the previous November and on another previous occasion, that it was "less likely that an employer acting fairly and without unlawful discrimination would have concluded that [the Claimant's] indication that he was fit to return to work in mid-May 2003 was a misrepresentation requiring disciplinary action."[51]The Respondents submitted that at the time that the Claimant represented that he was fit to return to work, he had been absent from work for some six months with a very serious psychiatric illness involving instability of mood. His GP had just provided him with a certificate of unfitness for work for a further month. The school had duties both to the Claimant and to pupils which, if they were breached, could place them not only at risk of civil liability but also of investigation. His representation that he was fit to work demonstrated, it was said, both a lack of integrity and gross irresponsibility given the nature of his job. It was submitted that this was a key issue in the case and the Tribunal had failed to make any finding in relation to it or to give any reasons as to why the Respondents' case, supported by the evidence of the headmaster, should be rejected. It was perverse for the Tribunal to reach the conclusion that the Appellant would not have been dismissed and it was perverse to conclude that it was the Respondents who had acted inappropriately.[52]The Claimant countered that the Tribunal made proper findings in respect of this matter in particular at paragraphs 128 of the Judgment on remedy, and paragraphs 25 and 44-45 of the Tribunal's Judgment on liability. The Tribunal at the liability hearing had found that the Claimant's conduct reflected a desire to work and not an attempt to mislead the Respondents or to return to get more pay. The Tribunal also referred to the fact that it formed no part of the Respondents' pleaded case on breach of contract. The Claimant also submitted that the evidence before the Tribunal was that a number of other teachers had been told that their GP could certify them as too unwell to work but had chosen to return instead. It was submitted that the Tribunal had made a clear and reasoned finding that the Claimant would not have been dismissed for his return to work. Precisely the same issue had arisen in the Claimant's employment with the school before. In November 2002, the Claimant had worked notwithstanding the fact that he had received certificates from his GP advising him not to return to work. The Respondents knew about the fact that the Claimant had worked notwithstanding that advice (as was evident from the finding at paragraph 25 of the liability Judgment), and yet they took no disciplinary action against him for attending work. That was extremely good evidence that the Respondents would not have taken any disciplinary action (far less dismissed him) for essentially the same matter in May 2003.[53]In our judgment there was force in each side's arguments to the Tribunal. It is implicit in the Tribunal's findings that it did not accept the headmaster's evidence to the effect that the Claimant would have been dismissed in any event. The reasons for that view were spelled out though without express reference to the headmaster's evidence on the point. Whilst it would have been preferable for the Tribunal to have spelt out its rejection of the Respondents' "pupil safety" argument explicitly, it is our view that the reasoning is there implicitly, in particular in its reference to "the sequence of events in the previous autumn and on another occasion during the Claimant's employment", see para 128. In other words, the school previously had not seen fit to discipline the Claimant when he had come to work while certified unfit, so the Tribunal could take the view it would not have done so on this occasion either. The conclusion reached was one to which the Tribunal was entitled to come, and though other Tribunals might have come to a different conclusion, it cannot be said that the decision was perverse.[54]The Respondents' remaining point was as to aggravated damages. The law as to when aggravated damages can be awarded was not in dispute. Aggravated damages may be awarded by Tribunals in discrimination cases, but not simply because a claimant's feelings of indignation are aroused by some conduct of the respondent: see Prison Service and others v Johnson [1997] ICR 275 at 285 G to 286 H. The award may be made where a Respondent's conduct warrants such an award. The conduct must not be the mere commission of a discriminatory act which may be (and was in this case) unintentional but must involve some other feature which warrants the aggravated award. The decision whether or not to award aggravated damages and, if so, in what amount depends on the circumstances of the discrimination and on the way in which the complaint of discrimination has been handled. The relevant factors may include:(a) high-handed, malicious, insulting or oppressive actions by the employer: Alexander v Home Office [1988] ICR 685,(b) the way in which disciplinary investigations have been conducted: British Telecommunications plc v Reid [2004] IRLR327, and(c) the way in which a Respondent has defended proceedings: Zaiwalla & Co. v Walia [2002] IRLR 697 .[55]The Claimant had relied upon a considerable number of matters in support of his case that aggravated damages should be awarded. His submissions on the question were set out over four pages of skeleton argument before the Tribunal and at paragraph 154 of its Judgment the Tribunal set out that it "accepted many of the Claimant's arguments as to the entitlement to aggravated damages". A number of those matters were then set out. Whilst we accept that this was not intended to be an exhaustive list of the factors which impacted on the Tribunal's judgment as to the amount of those aggravated damages, clearly the matters explicitly mentioned must have been those matters which weighed to any material extent with the Tribunal. Had the omitted matters been of any real weight the Tribunal would have mentioned them, particularly as the expression "accepted many" implies the rejection of at least some points.[56]The specific matters set out in para 154 of the decision were:(1) the Respondents' failure to offer or provide a reference until the start of the remedies hearing,(2) the fact that amongst the papers for the Claimant's internal appeal against his dismissal was a reference to the Theft Act , and(3) the suggestion before the Tribunal (eventually dropped) that a fax document relating to a potential job offer to the Claimant from RGS High Wycombe was a forgery.[57]The Respondents attacked each of these points in turn. As to the reference point, they submitted that although the Claimant set out no fewer than 19 grounds on the basis of which he contended that an award of aggravated damages was appropriate, the one matter which he did not refer to was the lack of a reference. He had relied on the Respondents' failure to provide a reference at the Liability Hearing but at paragraph 168 of the Liability Judgment, the Tribunal had dismissed this allegation on the grounds that it accepted that the Respondents did not wish to give a reference on the grounds that they asserted that the Claimant had been dismissed for gross misconduct.[58]It was submitted that the only approaches for a reference received by the Respondents were four oral approaches received before they had been informed of the liability decision on liability. The headmaster had responded to all of them on legal advice. Any implication that there was some conscious delay in producing these letters was wholly unjustified. As to the reference produced on the first day of the remedies hearing, there was no obligation on the Respondents to produce such a reference. It was provided with the genuine intention of assisting the Claimant in his search for work and with an invitation to the Appellant to indicate any matters which he would like to see amended. This was with a view to agreeing a reference which was acceptable to both parties. Not only could this conduct not justify an award of aggravated damages but if the Tribunal used such an approach as a ground for awarding aggravated damages it would serve as a deterrent to employers seeking to assist former employees with the provision of a reference.[59]The Claimant countered that in his submissions he had complained on numerous occasions about the Respondents' failure to provide him with a reference. The Tribunal had been clearly unimpressed with the headmaster's approach to the provision of a reference, even at the date of the remedies hearing, referring to the proffered reference at paragraph 112 as " damned with faint praise". The headmaster had continued in his refusal to accept that the Claimant was a good and talented teacher even at the date of the remedies hearing. The Claimant also noted that in its second ET3, the Respondents advanced as a reason for not providing the Claimant with a reference the fact that they considered him to be a struggling teacher, and the headmaster accepted in cross-examination that the Claimant "wouldn't be delighted to read it." These references to the Claimant as a struggling teacher were referred to in the Claimant's submissions on aggravated damages and the Tribunal was entitled to take into account the Respondents' refusal to provide the Claimant with a fair and proper reference in its assessment of the aggravated damages that should be awarded to the Claimant.[60]As to the Theft Act point, the Respondents submitted that at the time of the internal appeal hearing, on reasonable grounds they considered that the Claimant had acted dishonestly in relation to his employment. There were two particular grounds for this belief:(i) the Claimant had said in his letter of application to Hampton School that he had been offered the position of Head of Sixth Form at the RGS, High Wycombe and had told the headmaster that he had turned down the offer of Head of Sixth Form at interview, when he had not been offered the job, and(ii) the Claimant had not been frank as to his state of his health. He had represented to the Respondents on a Personal Details form provided to the school on 17 March 2001 that his only sickness exceeding 14 days in length over the last ten years was a broken patella following a road traffic accident, when it appeared that he had a long-term and severe psychiatric illness which had rendered him unfit to work for a period of a year-and-a-half between July 1994 and January 1996. He had also made misleading statements as to his health to the School's bursar.[61]On the liability hearing, the Tribunal had expressed the view his statements as to the job offer at High Wycombe could properly have led to a disciplinary enquiry, though he would have been exonerated because he believed on reasonable grounds he would be offered a job along the lines of Head of Sixth Form year.[62]The headmaster had suspected that the Claimant had practiced a deception to obtain the offer of his post and had sought guidance from one of the governors of Hampton School, who was a QC practising in the field of criminal law. The governor had provided the headmaster with an extract from the Theft Act (a copy of section 16) which was included in the bundle for the internal appeal. The headmaster, in his comments to the appeal hearing, referred to the document and to the guidance which he had been given by the governor to the effect that obtaining pecuniary advantage by deception could potentially be an offence under the Theft Act . Thereafter the document was not referred to again until the headmaster was cross-examined.[63]The Respondents submitted that against this background it was quite wrong for the Tribunal to regard the inclusion of the single page in the internal appeal bundles as a basis for awarding aggravated damages.[64]The Claimant submitted that the Respondents were understating the importance of the document. The headmaster had specifically referred the appeals panel to the Theft Act in support of his assertion that the Claimant's dismissal should be upheld, talking of a potential offence against the Theft Act and describing it as a matter that was so serious that it had to be addressed. Understandably, submitted the Claimant, this aggravated his damages, especially as the Respondents persisted in their allegation that the Claimant had lied about, and deceived the Respondents about, being offered a post by RGS High Wycombe throughout the hearing on liability.[65]The allegation of forgery concerned the three documents purporting to emanate from the headmaster of RGS High Wycombe which the Claimant disclosed to the Respondents. The RGS headmaster had no recollection of the documents in question and cast doubts on their genuineness. In particular he cast doubt on a letter of 7 February 2001 which could be read as suggesting between the lines that the post of Head of Year for the Sixth Form was the Claimant's if he wanted it. The RGS headmaster's first witness statement (and to an extent his second) supported the Respondents' belief that the documents were forgeries. Unhappily for them, their witness was not satisfactory in his oral evidence and as the Tribunal put it in the liability Judgment at para 19:
"…when he had an opportunity to consider certain matters that [the Claimant] recollected, he corroborated them in his second witness statement and in his oral evidence to a large extent."
The Respondents, however, persisted in their allegation of forgery in their final submissions on the liability issue, asserting that one fax must have been sent by the Claimant to himself.[66]The Respondents submitted that they had good reason to be extremely suspicious of the genuineness of the documents and were entitled to pursue their suspicions, suggesting that where a party reasonably suspects dishonesty he should be able to pursue his cases robustly without fear of a finding of aggravated damages.[67]The Claimant submitted that the Tribunal was also perfectly well entitled to take into account the manner in which the Respondents pursued an extremely serious allegation of forgery in determining the amount of aggravated damages that the Claimant should receive. The allegation of forgery was made for the first time during the liability hearing. The Tribunal rightly identified this allegation as being made without any proper foundation and without proper enquiries having been made and, in the event, the Respondents dropped it. The Tribunal was not suggesting that a party was not entitled to litigate robustly, but the Tribunal effectively and justifiably found that the Respondents litigated irresponsibly and that this rubbed salt into the Claimant's wounds.[68]In our judgment, the Tribunal was entitled to take all three matters into account, and spelled out with sufficient clarity the reasons for its decision. The issue as to a reference was plainly a live issue and the Tribunal was entitled to take it into account, even if not specifically mentioned under the head of aggravated damages in the Claimant's voluminous written submissions. The Tribunal was entitled to take the view it did of the reference offered, even if it did come with the suggestion that amendments would be considered with a view to agreeing it.[69]As to the Theft Act point, this was not as insignificant as the Respondents would have had us believe. Whatever the source of the document, it was clearly treated by the headmaster as a serious element. As to the allegation of forgery, it was a serious allegation to make. A party who makes and robustly pursues a serious allegation of dishonesty must take the consequences when the allegation comes unstuck, particularly when, as in this case, the foundations of the allegation appear to have been laid on inadequately surveyed sand.[70]It might well be that other Tribunals would not have thought this a case for the award of aggravated damages, but in our judgment the conduct of the disciplinary proceedings and the way in which the liability proceedings were defended entitled the Tribunal to take the decision that it did and make the award which it did.[71]It follows that both the appeal and the cross-appeal will be dismissed.