THE HOME OFFICE v 1) MRS M KHAN 2) MRS I O KING [2008] UKEAT 0257_07_1402

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0257_07_1402Case No Appeal No. UKEAT/0257/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE HOME OFFICEAPPELLANT1) MRS M KHAN 2) MRS I O KINGRESPONDENT
Before
Mr Justice Underhill Mr D Norman Mr B M WarmanDate 14 February 2008
[1]APPEARANCES For the Appellant MR A TOLLEY (of Counsel) Instructed by: The Treasury Solicitors (Employment Law Team) One Kemble Street London WC2B 4TS For the Respondents MR I AZIZ (Consultant) Crescent and Star Consulting 386 Hanworth Road Hounslow Middlesex TW3 3SN SUMMARY Unfair Dismissal – Reinstatement/re-engagement Practice and Procedure – 2002 Act ('uplift') Race Discrimination – Other losses (compensation for loss of earnings) Appeal against order for re-engagement dismissed – Tribunal entitled on the evidence to find that re-engagement was practicable – observations about form of order for re-engagement. Cross-appeal against Tribunal's decision to 'uplift' under s.32(2) of Employment Act 2002 dismissed – Tribunal had regard to correct factors and gave adequate reasons. Cross-appeal against Tribunal's refusal to award compensation for loss of earnings for racial discrimination dismissed – Tribunal entitled to find discrimination had no causative effect on loss of employment. THE HONOURABLE MR JUSTICE UNDERHILL INTRODUCTION This is a case with a long history, but we are only concerned with some aspects of it. The Claimants, who are the Respondents to this appeal, were employed by the Home Office, which is the Appellant, until their dismissals, which in both cases were on 4 February 2005. By a decision dated 15 November 2005 an Employment Tribunal sitting at London (Central) found that the Claimants had been unfairly dismissed by reference to s. 98 of the Employment Rights Act 1996 , although it dismissed a claim of "automatic" unfair dismissal under s. 98A. The Tribunal also found that the Home Office had discriminated against the Claimants on the grounds of their sex and race in the manner in which it had handled some aspects of grievances brought by them. The Claimants also had a number of claims of discrimination in other respects, but these were not upheld and the details are not material for present purposes.[2]Both parties appealed to this Tribunal on a number of points. HHJ McMullen QC gave judgment on 14 November 2006. Again, most of the issues considered are immaterial for present purposes, but the Appeal Tribunal held that the Employment Tribunal should have made a finding of automatic unfair dismissal in addition to the finding under s. 98. It dismissed the Claimants' appeals on the discrimination claims on which they had lost. The Claimants have obtained permission to appeal to the Court of Appeal against that aspect of the decision. That appeal remains pending.[3]In the meantime the case has proceeded to a remedies hearing, which took place over six days in February this year before the same Tribunal. The judgment, which was carefully and clearly constructed, was sent to the parties on 9 March 2007. The decision and consequent orders made by the Tribunal can be summarised as follows. As regards each of the Claimants:(1) The Tribunal ordered the Home Office to pay the sum of £3,720.14 by way of arrears of an entitlement called 'shift disturbance allowance'. (We mention this only for completeness: it does not otherwise feature in this appeal.)(2) It made an order for re-engagement, subject to some complex conditions which we will have to set out below.(3) It ordered that the Home Office pay the sum of £1,120 under s. 102 (5) of the 1996 Act.(4) It made an award of £15,000 by way of compensation for injury to feelings in respect of the race and sex discrimination which it had found.(5) It fixed an uplift of 25 per cent on the award of £15,000 pursuant to s. 31 (3) of the Employment Act 2002 . The Claimants had asked for an uplift of 50 per cent.(6) It declined to order aggravated damages.(7) It declined to make any other order for compensation arising out of the acts of discrimination which it found, including, in particular, a claim for compensation for "loss of career in the Home Office".(8) It refused applications by the Claimants for a preparation time order and a wasted costs order.[4]The Home Office appeals against the order for re-engagement ((2) above). The Claimants originally cross-appealed on a number of issues, but following the sift process only two remain live or potentially live – first , an appeal against the Tribunal's decision to award no more than 25 per cent by way of uplift ((5) above), and, second , a contention that compensation for loss of career in the Home Office should have been awarded ((7) above).[5]The case has been conspicuously well argued before us by Mr Adam Tolley of counsel for the Home Office and Mr Imtiaz Aziz, an employment consultant, for the Claimants. Both of them also appeared before the Tribunal. THE FACTS[6]It is unnecessary for the purposes of this appeal that we set out the facts in any great detail. The essentials are as follows.[7]The Claimants were employed as interpreters in what was then the Immigration and Nationality Directorate ("IND") of the Home Office. Mrs King is a Farsi interpreter. Mrs Khan can translate, as we understand it, from more than one Indian language. Both had very long service: Mrs King from 22 October 1979, and Mrs Khan from 1 April 1985. They were based at Terminal 3 at Heathrow Airport. Although they were not formally graded as Executive Officers ("EOs") their benefits were equivalent to those of EOs employed in the Home Office. They had consistently good annual appraisals.[8]It had for many years been IND policy to move away from the use of employed staff interpreters and to use instead freelance interpreters. At the time of the Claimants' dismissals they were, and had for some time been, the last employed interpreters in IND (if not in the entire Home Office). One consequence of this development was that the Claimants often saw freelance interpreters being used on work which they believed could and should have been allotted to them. They came to feel both underemployed and undervalued, as well as believing that they were less well paid than the freelancers. This situation led to an unfortunate downwards spiral in relations between the Claimants and IND management. The Claimants reacted to their position by becoming increasingly unco-operative and, as the Tribunal found, "difficult". Their managers in turn became, as the Tribunal found, unsympathetic and unfair in their conduct towards the Claimants. There was a history of mishandled grievances going back many years; we need not go into that at this stage, though we will have to consider one aspect in due course.[9]Eventually the Claimants were told that their jobs were being abolished. They were offered alternative jobs in the EO grade. When they refused they were dismissed for redundancy. The final few years leading up to their dismissals were both contentious and very unhappy for the Claimants. They were both off sick suffering from stress for substantial periods and were also absent on "special leave" for long periods. THE APPEAL[10]We should start by setting out the statutory provisions relating to the power to order reinstatement and re-engagement. S. 113 of the 1996 Act reads as follows:
"An order under this section may be – (a) an order for reinstatement (in accordance with section 114) ,or (b) an order for re-engagement (in accordance with section115), as the tribunal may decide."
S. 114 then sets out the provisions relating to orders for reinstatement as follows:
"(1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed. (2) On making an order for reinstatement the tribunal shall specify- (a) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of reinstatement, (b) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and (c) the date by which the order must be complied with. (3) If the complainant would have benefited from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefited from that improvement from the date on which he would have done so but for being dismissed. (4) In calculating for the purposes of subsection (2)(a) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer's liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement by way of – (a) wages in lieu of notice or ex gratia payments paid by the employer, or (b) remuneration paid in respect of employment with another employer, and such other benefits as the tribunal thinks appropriate in the circumstances."
S. 115 deals with orders for re-engagement as follows:
"(1) An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment. (2) On making an order for re-engagement the tribunal shall specify the terms on which re-engagement is to take place, including- (a) the identify of the employer, (b) the nature of the employment, (c) the remuneration for the employment, (d) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re-engagement, (e) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and (f) the date by which the order must be complied with."
S. 116 is headed 'Choice of order and its terms'. S-ss. (1)-(4) read 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- (2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms. (3) In so doing the tribunal shall take into account- (a) any wish expressed by the complainant as to the nature of the order to be made, (b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms. (4) Except in a case where the tribunal takes into account contributory fault under subsection (3)(c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement."
[11]The terms of the order for re-engagement which the Tribunal made in the present case were as follows:
"Under section 113 of the Employment Rights Act 1996 it is ordered that the Respondent re-engage each of the Claimants upon the following terms: (i) Within 28 days of the promulgation date of this Judgement, or of receipt of their General Practitioners' certification of each Claimant's fitness to return to work, whichever is the later, the Respondent must (a) engage with each Claimant separately in conducting an objective assessment of their skills and aptitudes, such assessment to be completed within 14 days of its commencement, and (b) commence a broad search of existing vacancies at EO grade with a view to completing each of their re-engagement processes within a period of three months of completion of their skills assessment (ii) The persons assigned by the Respondent to conduct the re-engagement process must be unconnected with the unfair dismissal of the Claimants or the acts of sex and race discrimination as found by the Tribunal. (iii) The posts into which they are re-engaged must be established posts and neither supernumerary nor artificially contrived. (iv) It may well be appropriate and necessary to re-engage either or both of the Claimants for an initial period of no longer than six months at a grade below that of EO pending their retraining and the acquisition of new skills, but in such an event with full protection of their EO equivalent salary and benefits. (v) It will be incumbent on the Claimants as well as on the Respondent to engage in every step of the process of re-engagement in good faith with good will and the best of intentions, having put past events firmly behind them in accordance with their expressed intention in Tribunal. (vi) The Respondent must pay to each Claimant such net arrears of pay as would have resulted from their gross salary entitlement of £25,689.35 from 5 February 2005 until the date of re-engagement including any increases in pay and allowances pertaining to their grade which had been implemented during that period. (vii) From the sums due under paragraph (vi) above must be subtracted the sums which they actually received from the Respondent … [ We need not set out the full details of that.] (viii) The Respondent must make up contribution payments into each of the Claimants' pension funds backdated to the 5 February 2005 so that they do no loose any of their pension entitlement and are restored in this respect to the position they would have been in had they not been dismissed."
[12]This is a most unusual form of order. Although the opening words do appear explicitly to order re-engagement, most of the detailed provisions which follow are concerned not so much with actual re-engagement as with the establishment of a "process of re-engagement". It is possible to construe out of the order most of the essentials required by s. 115 (2), but there must be a serious question-mark over whether it adequately specifies "the nature of the employment", as required by s-s. 2 (b): the underlying concept seems to be simply that the Home Office should re-engage the Claimants in any job appropriate to the EO grade (or indeed possibly any job at all, as long as they are paid EO terms - see para. (iv) of the order), with the nature of the actual job to emerge as a result of the processes identified at para. (i). It is in consequence also questionable whether in making such an order the Tribunal had determined that the employment in question was "comparable" to their previous jobs, or otherwise "suitable", as required by s-s. (1). That approach may reflect the unusual characteristics of Civil Service employment, under which civil servants are typically appointed to a grade (such as Administrative Officer or Executive Officer) and can, at least in theory, be required to undertake any one of a very wide variety of "jobs" to which that grade applies; but there is room for argument about whether the requirements of s. 115 can be satisfied by so general an approach to the nature of the employment into which the employer is being ordered to re-engage a claimant. In addition, we are not clear on what jurisdictional basis the Tribunal made the various ancillary directions about the process (e.g. at para. (ii)). It seems to us that it is arguable that the Tribunal, which came up with this order off its own bat without consultation with the parties, has, albeit with the best of intentions, fallen into the error discussed by this Tribunal in Lilley Construction Limited v Gunn [1984] IRLR 483 - that is, of, in effect, delegating to the parties decisions which the statute requires it to take itself. However, Mr Tolley has, for reasons which we understand, made a deliberate choice not to take that point, or any of the points or potential points which we have identified above. We have felt it necessary to draw attention to them because we should be concerned if orders of this kind were being regularly made; but we are prepared, as the Tribunal was in Lilley Construction , not "officiously to disturb" the consensus reached by the parties and to proceed despite our doubts on the basis that the overall form of the order complied with the statute.[13]Following the promulgation of the order both parties applied for a review. For present purposes we need to deal only with the Home Office's application. That application took the point that para. (i) of the order as drafted had the effect of potentially indefinitely postponing the time at which the requirement to re-engage the Claimants would bite; and it was submitted that it was for that reason not a proper order. The Tribunal recognised the force of that point and issued a correcting order deleting the introductory phrase of para. (i), that is to say down to the words "whichever is the later".[14]We turn to consider the particular grounds of appeal on which the Home Office relies. These are helpfully summarised in Mr Tolley's skeleton argument under three heads which we will take in turn. 1. Fitness for work and "practicability"[15]Mr Tolley's case under this head can be summarised as follows. Both Claimants adduced evidence before the Tribunal that following their dismissals they had been unfit to work by reason of stress-related illnesses caused principally by their treatment at the hands of the Home Office. That evidence came primarily in the form of letters from their respective GPs. In the case of Mrs Khan it was reinforced by the fact that she was from November 2005 in receipt of incapacity benefit, and it was also supported by her oral evidence; but Mrs King gave evidence that she had in fact been fit for work throughout the period following her dismissal. The Home Office adduced evidence in answer to the Claimants' medical evidence from a psychiatrist, Dr Mallett, who had examined both Claimants and seen their records. He was highly critical of the evidence of the GPs and expressed the unequivocal opinion that both Claimants were, and had since their dismissal been, fit to work. He did not dispute that they, and in particular Mrs Khan, had suffered stress-related conditions, but he regarded those conditions as treatable and as insufficiently serious to prevent either of them from attending for work. The effect of the evidence before the Tribunal on this question was a major issue at the remedies hearing. Mr Tolley submitted that its resolution was essential if the Tribunal was to make a proper order for re-engagement, not only because if the Claimants were in fact suffering from long-term incapacitating illnesses it would not be practicable for them to be re-engaged, but also because, even if they were to be re-engaged, if they had been unfit for work for substantial parts of the intervening 2½ years the sum to be paid under s. 115 (2) (d) would need to reflect the fact that they would during such periods have earned only such amounts as they were entitled to by way of sick pay. Mr Tolley submitted that the Tribunal failed properly to consider or resolve that issue. Although the order which it made implicitly proceeds on the basis that the Claimants had ever since their dismissals been fit for work, there is no such explicit finding in the judgment; and the wording of the order as originally drafted, with its reference at para. (i) to the need for a GP's certification of fitness to return to work, shows, he submitted, that the Tribunal regarded that as an unresolved question.[16]It is necessary in the light of Mr Tolley's submissions to refer in some detail to the relevant findings made by the Tribunal. At paragraphs 17-20 of the judgment it set out the evidence relating to the Claimants' health in the relevant period, including the evidence of the GPs, the Claimants themselves and Dr Mallett, as we have already summarised it. It made no explicit factual findings on the disputed issue at that stage. It then proceeded to deal with the law. Its conclusions on the question of whether an order for re-engagement should be made, and the terms of any such order, appear in paragraph 25, which reads as follows: "25. Re-engagement : The Tribunal was unanimous in its decision to order that both of the Claimants be re-engaged by the Respondent for the following reasons:(i) Both Claimants passionately wish for re-engagement and have consistently taken this stance since the date of their dismissal. They now fully accept that their old roles as staff interpreters are redundant and that reinstatement is not an option. Their performance appraisal records during the long periods of their employment, 26 and 19 years respectively, were exemplary.(ii) The Tribunal very carefully considered the Respondent's objection to the Claimants being re-engaged. The Respondent contends that it is impracticable in the sense that it should not in principle be ordered because there is the highest risk that the necessary relationship of trust and confidence which should pertain between employer and employee would not be realistically possible in the light of the Claimant's expression of their own mistrust of the Respondent and their regularly expressed strong negative feelings about their treatment, including wrongs found unproven by the Tribunal. The Respondent further contends that the ongoing pursuit of this litigation by way of appeal from the Employment Appeal Tribunal Judgement to the Court of Appeal reveals an attitude inconsistent with the imposition of an employment relationship.(iii) The Tribunal noted that the Respondent did not object to the Claimants' re-engagement because of the Respondent's lack of trust and confidence in the Claimants but rather because of the Claimants' lack of trust and confidence in the Respondent, although the Respondent also contended that the Claimants had contributed to their own dismissal by their own intransigence and refusal to co-operate in the redeployment process prior to their dismissal.(iv) The Tribunal carefully scrutinised the Claimants' own evidence on this issue and was unanimously convinced of each of the Claimant's individual sincerity and willingness to "wipe the slate clean" and make a fresh start. They told the Tribunal that the main players in their unlawful treatment, Mr Wild, Mr Barnett and Mr Jeffrey, whom they could not trust, were no longer in the Respondent's employ save for Mr Wild who now worked in Bootle. Regarding the other persons involved in the factual matrix of their case; notably Mrs Ackland, Mrs Murrell, Miss Young and Ms McCool who heard their appeal, the Claimant's told the Tribunal that they harboured no ill feeling towards these people having heard their evidence at the Full Merits Hearing. The Claimants felt that those primarily to blame were the bosses who were no longer there and that these subordinate staff had not acted from malice towards them personally and had simply made mistakes, which was forgivable, and had admitted as much in cross-examination at the Full Merits Hearing.(v) The Tribunal also questioned Dr Mallett on this issue. He had conducted an in depth psychiatric examination of each of the Claimants on behalf of the Respondent in July 2006 and had observed them giving evidence in Tribunal during two days of this Hearing. The Tribunal was impressed by the careful and considered quality of all of Dr Mallett's evidence and was assisted by it. On this issue, Dr Mallett unequivocally stated his professional opinion to be that once there was closure of this litigation, each of the Claimants was capable of putting the past behind them and undertaking re-engagement in a different part of the Respondent organisation.(vi) The Tribunal was mindful of its findings at the Full Merits Hearing that the Respondent had behaved unreasonably in nine discrete respects in dismissing the Claimants for redundancy and that although the Claimants had been mistrustful and uncooperative until the eleventh hour of the redeployment process, this recalcitrance had to be seen in context. The Tribunal found that it was not entirely surprising that the Claimants had long felt and expressed their mistrust of the Respondent against the background of its 15 year failure to grasp the nettle of their redundancy, their unfair dismissal, Mr Wild's unreasonable behaviour towards them, including his deliberate short-circuiting of the Claimant's discrimination complaints against his superior and himself and the Human Resources Department's abject failure properly to address the Claimants' grievances relating to race and sex discrimination. These complaints have now been aired at the Full Merits Hearing and their complaints of unfair dismissal and certain of their discrimination complaints upheld.(vii) The Tribunal also concluded unanimously that the Claimants could not reasonably be said to have contributed to their own dismissals. Their defensiveness and mistrustfulness in the redeployment process was almost entirely explicable by the Respondent's treatment of them as found by the Tribunal and as set out in the above sub-paragraph and further particularly including - the Respondent's failure to explain explicitly the outsourcing of interpreter work; the mixed messages regarding their position, for example, Mr Wild's letter of 23 December 2003 telling them that they were "certainly not redundant"; their discovery that Mr Wild had falsely upped their JEGs scores and the twice repeated offer of the same "supernumerary" posts with scrappy and unconvincing job specifications.(viii) The Claimants told the Tribunal that they had instigated an appeal to the Court of Appeal because they had been advised to do so but also that they wished for closure and resolution of the whole history of this litigation. The Tribunal did not accept the Respondent's contention that the rebuilding of a relationship of trust and confidence was incompatible with an employee's unassailable right of access to the Courts. This would be tantamount to saying that an employee had to choose between taking her employer to an Employment Tribunal and continuing her employment. This is manifestly not the case and would in any event be in contravention of the fundamental public policy principle of access to justice.(ix) The Respondent is a vast organisation with 13,000 employee posts in the core Home Office and enormous resources. The Tribunal simply did not find it credible that the Respondent would not be able to comply with the conditions for re-engaging each Claimant, as set out in paragraph 2 of the Judgement Orders above, without it being necessary to utilise persons in this process which may give rise to any issues of distrust arising from past history. Trust and confidence is a relational matter between persons and the Respondent organisation is large enough for the Claimants to be re-engaged without ever having to work with people in whom their trust has been damaged by past unlawful treatment as found by this Tribunal. The Tribunal considers that each Claimant's ability to relinquish past bitterness will be an essential ingredient of a successful re-engagement and finds, on the basis of all the evidence before it at this Hearing, that each Claimant is indeed capable of and willing to do so. The Tribunal does not anticipate that the posts into which the Claimants are re-engaged will necessarily be either the same or similar to each other, nor necessarily, in the same section or department within the Respondent, given each Claimant's different experience, skills and aptitudes as will be determined by proper assessment. It may even be, given the evidence of Dr Mallett regarding the Claimants' joint engrossment in their complaints against the Respondent over the years and in this litigation, which has been very stressful for them, that their re engagement in different spheres of the Respondent organisation may well be beneficial to all parties concerned.(x) Having regard to the entirety of the circumstances and history, the Tribunal is unanimously convinced that re-engagement is the proper, appropriate and just order to make in this case in respect of each Claimant and does not accept, on the basis of all the evidence and argument before it during this Hearing, that it is' in any way impracticable for the Respondent to comply with it." (We set out that paragraph in full, although not all of it is relevant to this particular issue, because we will need to return to it in connection with the Home Office's other grounds.)[17]It is quite true that it is not possible to find in that long paragraph any explicit finding that the Claimants were fit for work at the date of the hearing or had been fit throughout the period since their dismissal. But in our view it is quite clear that that was in fact the Tribunal's finding; and the reasons for that finding are also, it seems to us, sufficiently clear. The Tribunal stated in terms that it was impressed and assisted by the evidence of Dr Mallett (see sub-paragraph (v)), and in our view it can safely be inferred that it accepted his views as to the fitness for work of both Claimants. As regards Mrs King, his conclusion was of course in line with her own evidence; and if we are to discount her GP's letter (of which, as the Tribunal expressly recorded in paragraph 20, Dr Mallett had been dismissive) the evidence was all one way. In the case of Mrs Khan the position is admittedly less clear. The fact that she was from early on in the period in receipt of invalidity benefit does raise a reasonable prima facie case that she was in fact unfit for work at least from that date, and we agree that it would have been better if the Tribunal had explained explicitly the basis on which it felt able to come to a different conclusion. But at paragraph 19 of the judgment it had said this (having recited the fact that Mrs Khan was in receipt of incapacity benefit and some aspects of her condition):
"Dr Mallett stated his opinion that Mrs Khan has been fit for work throughout since September 2002 although with low points in 2003 and 2004, the latter relating to the abortive Tribunal Hearing at Watford on 30 September 2004. It was clear to the Tribunal that her dismissal had had a devastating emotional effect on Mrs Khan and had caused very considerable financial difficulties to her family. Dr Mallett told the Tribunal that undergoing medicated treatment for depression did not necessarily entail that a person was not fit for work and that many people did perform well at work in these circumstances."
We believe that it can be understood from that passage, read with the Tribunal's later endorsement of Dr Mallett's evidence, that the Tribunal accepted that, notwithstanding that Mrs Khan was in receipt of incapacity benefit, she was in fact fit for work throughout the relevant period. That was a finding which it was entitled to make on the evidence before it, and its reasons for doing so are plain, namely its acceptance of the opinion of Dr Mallett. We would also observe that it would have been legitimate for the Tribunal to take into account the fact that if Mrs Khan had not in fact been dismissed, it is likely, given the suggested aetiology of her symptoms, that she would not have suffered the illness which she did, or in any event not with the same severity.[18]We accept that on this analysis it is anomalous that the Tribunal initially included in the order a reference to the need for certification by the Claimants' GPs of their fitness to return to work. There is no explanation in the judgment of why this provision was included. Mr Aziz submitted that, whatever the reason, it can now be ignored because the provision in question has been deleted by the correction following the review. We are not sure that that is an answer, since Mr Tolley relied on the provision not in its own right but as evidence of the Tribunal's thinking, and that is not something that can be corrected retrospectively. We suspect, though it is impossible to be sure, that although the provision on its face applied to both Claimants it was inserted with the case of Mrs Khan in mind and because the Tribunal will have been concerned at effectively ordering the re-engagement of someone who was on incapacity benefit. But, whether or not that is the explanation for the inclusion of this provision, the real question for us is whether the anomaly is sufficient to undermine the conclusions that we would otherwise draw from the text of the judgment as to the Tribunal's conclusion, and reasons for that conclusion, on the central question of the Claimants' fitness for work. We do not believe that it is. In our view, the terms of the judgment speak for themselves and are unaffected by the drafting of the order on this particular point, whatever the explanation for it may have been.[19]Mr Tolley had a further submission under this general head. He submitted that if the Tribunal is indeed to be taken as having found that the Claimants were fit for work throughout this period, they were plainly in breach of their duty to mitigate their loss by seeking other employment. He submits that that factor - that is to say, the failure to mitigate - ought to have been taken into account by the Tribunal in considering whether re-engagement was practicable. He accepts that there is clear authority from this Tribunal that questions of mitigation do not fall to be considered in calculating the amount to be ordered to be paid under s. 115 (2) (d) (see City and Hackney Health Authority v Crisp [1990] IRLR 47); but his point is that the question of mitigation is relevant to the anterior question of whether an order for re-engagement should be made in the first place. We cannot accept this submission. We do not believe that the fact (as we assume it to be for the sake of argument) that the Claimants had failed to mitigate their loss during a lengthy period between the dismissal and the date ordered for re-engagement has logically any bearing on the question of whether it is practicable to re-engage them. The most that might be said is that the fact that the Claimants would receive what would be said to be a windfall by being paid in full in respect of the period in question made it unfair that an order for re-engagement should be made. But unfairness of that kind is not the same as impracticability. It might be argued that, although practicability is the principal factor mentioned under s. 116 (3) in deciding whether an order should be made, a broader discretion under s. 113 is not excluded. We have not heard argument specifically on that point; but even if it were correct we do not believe that it would be right to allow the fact that they are entitled payment on a 100 per cent basis on re-engagement (which is simply a consequence of the statutory scheme and involves no element of choice on their part) to be deployed against the Claimants as a reason why an order which would otherwise be appropriate should not be made.[20]We therefore reject the Home Office's first ground of appeal. That conclusion makes it unnecessary to deal with a technical point raised by Mr Aziz to the effect that the Home Office's grounds of appeal do not challenge separately the award under s. 115 (2) (d), as opposed to the overall question of whether an order for re-engagement should have been made. This omission only emerged in the course of submissions before us; and a precautionary application for permission to amend was only made by Mr Tolley in the course of his submissions in reply. If it had been necessary to deal with the point we are inclined to think that we would have granted permission, because it was hard to see how the Claimants would have been prejudiced by allowing the point to be argued; but in the event, as we say, it does not arise. 2. Breakdown of trust and confidence[21]It was the Home Office's case before the Tribunal that re-engagement of the Claimants was impracticable because the necessary relationship of trust and confidence between them and their managers and their employers would be lacking. The case is succinctly summarised at paragraph 25 (ii) of the Tribunal's judgment as set out above. It is to be noted that, most unusually, what was relied on was not any loss of confidence in the Claimants on the part of the Home Office as their employers but, rather, what it was said was the Claimants' loss of confidence in the Home Office.[22]The Tribunal dealt with that submission at paragraph 25 (iv)-(vi) of its judgment. Mr Tolley submitted that its conclusions in those paragraphs are perverse. He drew our attention to some of the evidence of the extreme hostility of the Claimants' views about the Home Office and their experience of working there and submitted that in the light of that evidence it was inconceivable that they would be able to turn over a new leaf, or (to take a different cliché) start with a clean slate, in the way which the Tribunal had found that they would.[23]We reject that submission. Whether it was realistic to expect the Claimants to return to work within the Home Office was quintessentially a question for the Tribunal. It considered that question carefully and sensitively by reference, among other things, to the impression which the Claimants had made in the evidence which they gave to it. We can see no basis on which we, who have not had the benefit of hearing any evidence from the Claimants, could possibly interfere with the assessment which the Tribunal made.[24]In this connection Mr Tolley sought to rely also on two newspaper reports which appeared on the day after the conclusion of the hearing and in which the Claimants and Mr Aziz are quoted as making some observations which, he says, reinforce the case that the Claimants could not realistically be expected to return to work at the Home Office. The cuttings of the reports in question were delivered by hand to the Tribunal (which was known to be deliberating in chambers) on the day that they appeared, under cover of a letter from the Treasury Solicitor inviting them to take the reports into account, although not specifying the basis on which they were said to be relevant. The Tribunal apparently decided not to open them until it had reached its decision, and accordingly it paid no regard to the letter or the cuttings. Mr Tolley submitted that it should have done so. We agree that the Tribunal ought at least to have opened the letter: unless it did so it had no way of knowing whether the contents were or were not matters with which it properly had to deal as part of its deliberations. (We suspect that its over-scrupulosity in this regard reflects an unfortunate earlier incident in which the first hearing of the case had had to be aborted following a personal approach to the members of the Tribunal by a senior Home Office human resources official.) However, if the Tribunal had opened the letter it would then have had to reach a view as to whether the cuttings were potentially admissible and were capable of influencing its view on any of the issues before it. If they were, it would then have had to have invited further submissions from the parties, either orally or in writing. We are entirely satisfied that the reports were of no material assistance and that if the Tribunal had considered the letter and the cuttings they would simply have put them to one side. They add little or nothing to the evidence and arguments which the Tribunal had already heard and on which it was well placed to decide on the material already properly before it. Even if the contents of the newspaper reports were technically relevant to their considerations, the only possible view which the Tribunal could have taken would have been that it was disproportionate to call for further submissions at that very late stage.[25]We accordingly dismiss the Home Office's second ground of appeal. 3. Need for "closure"[26]As reflected at paragraph 25 (ii) of the judgment, the Home Office had contended before the Tribunal that: "the ongoing pursuit of this litigation by way of appeal from the Employment Appeal Tribunal Judgement to the Court of Appeal reveals an attitude inconsistent with the imposition of an employment relationship".[27]At paragraph 25 (v) of the judgment the Tribunal said this:
"Dr Mallett unequivocally stated his professional opinion to be that once there was closure of this litigation, each of the Claimants was capable of putting the past behind them and undertaking re-engagement in a different part of the Respondent organisation."
Mr Tolley submitted that in the light of that expression of opinion by Dr Mallett, which the Tribunal evidently accepted, it was perverse, and not open to the Tribunal on the evidence, for it to find that the Claimants would be able to return to work, because there was neither at that stage nor in the foreseeable future any prospect of "closure of the litigation" because of the pending appeal to the Court of Appeal.[28]The Tribunal sought to meet this point at paragraph 20 (viii), but Mr Tolley submitted that the answer which it gave misses the point which he was making. He was not advancing the patently unattractive submission that "an employee had to choose between taking her employer to an employment tribunal and continuing her employment": he was making a focussed point relating to the particular facts of this particular case.[29]Mr Tolley is, in our view, right to say that the Tribunal's observations at sub-paragraph (viii) do not directly meet the point which he was making. Nevertheless, it is in our view necessarily implicit in the Tribunal's judgment that it found that the pursuit by the Claimants of their appeal to the Court of Appeal was not inconsistent with "closure" in Dr Mallett's sense. We can see nothing perverse in such a finding. The Claimants now had a substantial victory already under their belts. The issue in the appeal essentially involves points of law about the impact of the burden of proof provisions and the application of the decision in Igen Ltd v Wong [2005] ICR 931 ; and whatever the outcome of the appeal a further liability hearing is not likely to be required. They are, as the Tribunal found, pursuing the appeal on advice. Their doing so does not seem to us to be, as Mr Tolley was constrained to put it, necessarily incompatible with a willingness to return to work on the basis of a relationship of trust and confidence at the Home Office.[30]We therefore reject each of the Home Office's grounds of appeal; and the appeal is accordingly dismissed. THE CROSS APPEAL[31]Both of the heads of the cross-appeal identified in para. 4 above relate to the (limited) part of the Appellants' discrimination claims which were successful. It is necessary to set out the position about these claims a little more fully:(1) During the later period of their employment the Claimants had raised a number of grievances. For present purposes we can start with Mrs Khan's letter to the Head of Personnel Management dated 23 September 2001, apparently sent on behalf of both Claimants. This purported to raise a single grievance, but it was split under four headings – (1) 'lack of work/mobility';(2) 'harassment';(3) 'sex and racial discrimination'; and(4) 'equal pay' (which was concerned with equality with freelancers rather than gender equality). The discrimination alleged under head (3) consisted of failure to take seriously previous complaints raised about the substantive issues. (2) The Tribunal in its liability decision distinguished between the Claimants' complaints about particular substantive issues (i.e. essentially points (1), (2) and (4)) and their complaints of discrimination on grounds of race or sex. At para. 109 it found that "the Respondent … treated the Claimants' grievances regarding race and sex discrimination differently from their other grievances in that the latter were seen as substantive, taken seriously and addressed whereas their discrimination complaints were not". That conclusion was based on a careful and thorough narrative of the way in which the Claimants' grievances were handled between 2001 and 2005, which appears at paras 27-87 of the judgment. (3) The Tribunal went on at paras. 110-113 to hold that the reason for that difference of approach was itself at least partly the Claimants' race and sex and accordingly that it constituted unlawful direct discrimination. Its reasoning was based exclusively on the burden of proof provisions. There was no finding of overt discriminatory behaviour, and it is plain that the Tribunal's finding was based on unconscious and/or institutional prejudice rather than any conscious discrimination. The Claimants' complaint that the Home Office's handling of their "substantive" grievances was discriminatory was rejected, although the Home Office's conduct was criticised in many respects. (4) Para. 114 of the liability decision reads as follows:
"Accordingly the Tribunal upholds the Claimants' complaints that they were treated less favourably than hypothetical comparators in respect of the Respondent's failure to deal properly with their discrimination grievances and finds that they have thereby suffered detriment in hurt feelings and diminution of trust which did not assist them in responding to the need to engage at an earlier stage with the process of their redeployment which may in turn have led to their continued employment it found." (5) When the Tribunal came to consider the appropriate remedy for that discrimination it said, at para. 26: "26. Compensation for sex and race discrimination : The starting point is that the Tribunal found at the Full Merits Hearing that the Claimants had been subjected to both sex and race discrimination in respect only of the Respondent's failure properly to deal with their grievances relating to race and sex discrimination. The Tribunal found that their other complaints that they had been subjected to unlawful acts of race and/or sex discrimination in ielation to their lack of work, their pay, their training and development, being put on special leave, their dismissal and the denial of compensation to them under the CSCS were not well-founded and failed. It is clear from the statutory compensation provisions in the Sex Discrimination Act and the Race Relations Act and the case law, notably the recent Court of Appeal case of Essa v Laing Ltd, that there must be 'a causal link between the discrimination as found and the resulting damage, although there is no requirement of reasonable foreseeability in order to establish liability."
[32]Mr Aziz submitted that the distinction drawn by the Tribunal between the Claimants' "substantive" complaints and their complaints of discrimination was unjustifiable: the complaints of discrimination were simply an aspect of the substantive complaints. We do not agree. Mrs Khan's letter itself recognises the distinction, which is a genuine and comprehensible one: the Claimants were not saying "you are [e.g.] paying us less than freelancers because we are Asian woman" but "you are ignoring our [freestanding] complaints because we are Asian women". That distinction was reflected in the way in which, as the Tribunal found, the Home Office treated the grievances. It took seriously the substantive complaints but largely ignored the complaint of discrimination – that being conduct which the Tribunal found to be discriminatory.[33]Against that background, we turn to consider the two issues on which the Claimants cross-appeal. Uplift[34]The issue here is whether the Tribunal erred in law by setting the uplift under s. 31 (3) of the 2002 Act at 25 per cent rather than 50 per cent as Mr Aziz had urged.[35]We should start by setting out the relevant statutory provisions. S. 31 (3) reads as follows:
"If, in the case of proceedings to which this section applies, it appears to the employment tribunal that- (a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, (b) the statutory procedure was not completed before the proceedings were begun, and (c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, it must, subject to subsection (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent."
We need not set out subsection (4) in full. So far as relevant for present purposes, it permits the Tribunal to make no uplift or an uplift of less than 10 per cent: "if there are exceptional circumstances which would make [such an increase] unjust or inequitable".[36]The breach of the statutory procedures which led to the application of s. 31 (3) was a limited and specific breach, albeit an important one. What happened was that in October 2004 the Claimants wrote to Mr Jeffrey, the Director General of IND, restating and elaborating all their past grievances. He had refused to entertain that as a grievance on the ground that it was 'inappropriate in circumstances where the Claimants had already started ET proceedings'. The Claimants had then, in November 2004, lodged a grievance with the Permanent Secretary at the Home Office complaining of Mr Jeffrey's decision. In the breach of the statutory procedure, they were not then invited to a "step 2 meeting": see para 7 of the Schedule 2 to the 2002 Act. The 'non-compliance' on which the Tribunal relied for the purpose of imposing the uplift was the failure to respond to the letter to the Permanent Secretary; but the Tribunal appears – reasonably, as it seems to us – to have treated it as occurring for the same reasons as Mr Jeffrey's initial refusal. It was the Home Office's case before the Tribunal that the grievance lodged with the Permanent Secretary was not a discrete grievance capable of attracting the operation of s. 31 (3). The Tribunal dismissed that contention, which is not renewed before us.[37]The Tribunal dealt with the question of the amount of the uplift as follows:
"40. The Tribunal therefore considered the level of uplift of the Claimants' damages for injury to feelings. It could not be said that there were exceptional circumstances which would make an increase of 10 per cent unjust or inequitable to the Respondent. The Tribunal considered it just and equitable in all the circumstances by virtue of section 31(3) Employment Act 2002 to uplift each of the Claimants' awards by 25 per cent because the Tribunal could see no proper grounds why the Claimants should have been denied access to the statutory grievance procedures for the reason given, namely that they had brought Tribunal proceedings which were in train. It struck the Tribunal as peculiarly inappropriate that this response should have come from Mr Jeffrey who was at that time the Director General of the IND department of the Respondent, a Government Department which purports to be committed to building a safe, just and tolerant society."
[38]Mr Aziz submits that the decision to award no more than 25 per cent was perverse. He submits that the breach of procedures in this case was flagrant and peculiarly culpable and that it necessarily attracted an award at the top of the available range. He submitted by way of fallback that, even if we were not satisfied that the Tribunal's decision was perverse, it had not given sufficient reasons, and that the decision should be remitted to it on that basis.[39]It is well established that this Tribunal will be very slow to entertain a challenge to the decision of an employment tribunal as to the level of uplift that should be made under s. 31 (3) of the 2002 Act: see in particular the observations of HHJ Burke QC in CEX Ltd v Lewis (UKEAT/0013/07) at paragraph 49. We do not believe that Mr Aziz has shown that the decision of the Tribunal in this case was perverse. We do not see that the non-compliance with the statutory procedures was so highly culpable that only a maximum award would be appropriate. We will assume, as the Tribunal did, that it was 'infected' by Mr Jeffrey's initial defective reasoning. It was indeed on that basis, as Mr Aziz said, deliberate; and, as the Tribunal itself acknowledged, it was particularly unfortunate that a person in the position of Mr Jeffrey should have made such an error. Nevertheless, his conduct was not unreasoned or contumelious. The view taken by Mr Jeffrey that it was inappropriate to proceed with a grievance procedure when there were pending Tribunal proceedings does not seem to us irrational or irresponsible, albeit that it was wrong. We also agree with Mr Tolley that it is potentially relevant that, as the Tribunal found elsewhere in its decision, the procedural failure in question did not in fact lead to any adverse consequences. At paragraph 35 of the judgment the Tribunal said this:
"The chance that if the Respondent had properly dealt with the Claimants' sex and race discrimination grievances, but in all other respects had behaved as it did, that this would have had any measurable impact on the Claimants level of mistrust to the extent that their willingness to engage in the redeployment process would have been significantly increased is, in the Tribunal's unanimous view, remote indeed."
[40]There were, we think, on the facts of the present case sufficient reasons why a reasonable Tribunal might have chosen the level of uplift which the Tribunal did choose in the present case. We agree with Mr Aziz that it might have been better if the Tribunal had spelt out its reasoning, not simply for making an award of more than the minimum 10 per cent that it did, but for not, as it had been asked to do, awarding the maximum. The fact that the discretion under s. 31 (3) is at large does not mean that it should be impossible to articulate the factors which have led to a decision in any given case; and it will be good practice for a tribunal briefly to indicate those factors, particularly by reference to any submissions that it has heard. But we do not believe that the reasoning in the present case is so inadequate as to contravene the requirement that the Tribunal should set out sufficiently the reasons for the decision which it reached.[41]Mr Tolley also submitted to us that it is wrong to approach the assessment of an uplift under s. 31 only on a percentage basis. The Act uses percentages to specify the minimum and maximum uplifts, but the primary actual requirement is that a tribunal should specify an "amount", albeit one falling between the minimum and the maximum; and he submits there is no reason why that amount should itself always be expressed as a percentage. The relevance of that submission is, he says, that - at any rate in the case of a peculiarly large or a particularly small award to which the uplift is being applied - it may be relevant to consider whether the actual amount of the uplift is proportionate having regard to the purposes for which the jurisdiction under s. 31 (3) exists. Even a 10 per cent uplift on a very large award may, he submits, lead to an excessive sanction on the employer for the breach of procedure which have led to s. 31 (3) being engaged. This is an interesting submission, and we are at present inclined to believe that it is well-founded; but it does not seem to us to have any application on the facts of the present case, where the level of the award is neither exceptionally high nor particularly low. We see no need to deal with the submission in order to resolve the issue before us and we prefer to make no final decision on it. The "loss of career" claim[42]This ground of appeal will only be live if the Home Office fails to comply with the order for re-engagement which we have upheld. (Formally, in fact, the time for doing so has already passed; but the Claimants have made it clear before us that if, in the light of our dismissal of the appeal against the re-engagement order, the Home Office is prepared to reconsider its previous stance, albeit late, they would certainly wish to accept re-engagement in a suitable role.) It remains to be seen whether that will occur; but it seemed to us that we ought to deal with the point at this stage.[43]In that event, the Claimants will have lost their employment as civil servants. They argued before the Tribunal that that loss – described as "loss of career", though it is in practice a claim for loss of earnings – was a consequence of the discrimination which the Tribunal found in relation to the mishandling of the grievance procedure and which we have summarised at para. 31 above; and they sought compensation accordingly.[44]The Tribunal dealt with that claim at para. 35 of the judgment in the following terms:
"35. The Claimants claim in the alternative either loss of their careers in the Home Office due to unfair dismissal (measured as full loss of earnings until retirement), or loss of CSCS compensation which they claim they would have been entitled to had they been fairly dismissed, for example because there were no suitable alternative posts. The Claimants contend that their loss of trust and confidence in the redeployment process was caused by Mr Wild's behaviour towards them and that but for the race and sex discrimination which they suffered they would have co-operated and may very well have retained their employment; alternately, that they would have received CSCS compensation if they had been fairly dismissed due to the absence of alternative posts. Indeed, the Tribunal found at paragraph 114 of its Reasons following the Full Merits Hearing that the Respondent's, failure to deal with the Claimants' discrimination grievances caused "hurt feelings and diminution of trust which did not assist them in responding to the need to engage at an earlier stage with the process of their redeployment which may in turn have led to their continued employment with the Respondent."
However, this was part of a much broader picture of the engendering of mistrust on the Claimant's part, as set out in the Reasons following the Full Merits Hearing and briefly summarised in paragraph 25 (vi) and (vii) of these Reasons together with the Tribunal's earlier finding that the Claimants were difficult (paragraph 96 of its Reasons). The Tribunal concluded unanimously on all the evidence that it could not be said that the Claimant's loss of career flowed directly and naturally from the mistrust engendered by the Respondent's acts of sex and/or race discrimination, as distinct from the unreasonable treatment constituting their unfair dismissal or from their other grievances relating to lack of work, humiliating comments from colleagues and unequal pay. The chance that if the Respondent had properly dealt with the Claimants' sex and race discrimination grievances, but in all other respects had behaved as it did, that this would have had any measurable impact on the claimants level of mistrust to the extent that their willingness to engage in the redeployment process would have been significantly increased is, in the Tribunal's unanimous view, remote indeed. The same is true of the likelihood that that the Claimants would have been entitled to receive CSCS compensation because no other suitable posts were available had the dismissal been fair. The Tribunal was also mindful of its finding at paragraph 80 of the Reasons following the Full Merits Hearing that payments under the CSCS scheme are at the discretion of the Minister and not as of absolute right."[45]Although in that paragraph the Tribunal does not expressly refer to authority, it had in an earlier section of the judgment dealing with the law directed itself (para.

(x) ) that:

"In discrimination cases compensation is to be awarded only where there is a causal link between the acts of discrimination and the injury alleged. It is sufficient if the damage flows directly and naturally from the wrong, (Essa v. Laing Ltd. [2004] ICR 746 (CA))."
[46]It is convenient at this stage briefly to summarise the effect of Essa v. Laing . It was a case in which the claimant had been the victim of a "one-off" instance of overt racial abuse from a manager which had led to his developing a severe depressive illness and consequent loss of employment. The severity of his reaction was, at least arguably, not a reasonably foreseeable consequence of the act in question, but it was accepted that it was nevertheless genuinely a consequence of it. The issue was whether the employers were liable to compensate him only to the extent that his losses were reasonably foreseeable. The Court of Appeal held that, as it is put in the headnote: "… the correct approach to the assessment of a claim for damages, under sections 56 and 57 of the Race Relations Act 1976, for the statutory tort of direct unlawful race discrimination was that the victim was to be compensated for the damage or loss which was caused by and arose naturally and directly from the wrongful act, and it was unnecessary to superimpose a requirement or prerequisite of reasonable foreseeability of injury or damage; that it was important, in deciding the extent of the loss for which the wrongdoer should be held liable, to analyse the nature and scope of the wrongdoer's obligation in the particular circumstances, but the consequences of the wrongful act did not turn on any analysis of the wrongdoer's intention or motives; that, accordingly, all that the applicant needed to establish was the causal link between the racial abuse and his psychiatric illness …" (The headnote may not be wholly accurate in as much as both Pill LJ and Clarke LJ reserved the question whether a different approach might be necessary in cases where the discrimination found, albeit "direct" on the conventional classification, did not take the form, as in that case, of overtly discriminatory conduct directed at the complainant: see in particular per Pill LJ at para. 39 (p. 760). Mr. Tolley made it clear that he would if necessary seek to argue that the ratio of Essa v. Laing had no application on the facts of the present case; but that was not his primary argument, and in the event we have not had to consider it further.)[47]Mr. Aziz submitted that, applying the law as stated in Essa v. Laing (and in Kuwait Airways Corporation v. Iraqi Airways Company (nos. 4 & 5) [2002] 2 AC 883 , from which the reasoning in Essa v. Laing primarily derives), the conclusion which the Tribunal reached in para. 35 was not open to it on the facts found, particularly those already found in the liability decision. He points out that the Tribunal had explicitly found (at para. 114 of the liability decision) that the Home Office's discriminatory failure to deal properly with their grievances had led to a "… diminution in trust which did not assist them in responding to the need to engage at an earlier stage with the process of their redeployment which may in turn have led to their continued employment." He submitted that that is a finding that the dismissals would probably not have occurred but for the discriminatory conduct and the Claimants' consequent loss of trust in their managers, because the Claimants would have accepted re-deployment; and thus that their "loss of career" was "directly and naturally" caused, or in any event contributed to, by that conduct. Questions of whether that loss was too remote because it was not reasonably foreseeable did not arise – Essa v. Laing . That being so, the finding in para. 35 was inconsistent with the primary findings of fact, and the conclusions of law necessarily following from those findings, and could not stand[48]Mr. Tolley in response submitted that the Tribunal had patently applied the right test and came to a conclusion that was open to it on the facts found. We agree. We do not read para. 114 of the liability judgment as a finding that the Claimants would probably have remained in employment but for the discrimination which the Tribunal found proved. It is, at most, a finding that there was a chance that they might have done; and, as the Tribunal pointed out at para. 35 of its remedy judgment, that finding was made on the basis of the totality of the Respondent's mishandling of their grievances and not specifically related to those (much more limited) aspects of the mishandling which the Tribunal had found to be discriminatory. The question which the Tribunal considered at para. 35 for the purpose of its remedy decision was, correctly, whether but for those particular acts of discrimination there was a significant chance that they would have retained their employments. It held that there was no such chance. That was a broad factual assessment of the kind which the Court of Appeal emphasised in Essa v. Laing could confidently be left to the good sense of tribunals (see per Pill LJ at para. (p. 759 F-G) and Clarke LJ at para. 53 (p. 763 A-B)).[49]Mr. Aziz also submitted that the effect of the Tribunal's reasoning was that the Respondents were enabled to benefit from their own wrong in unfairly dismissing the Claimants: he said that the case was in all material respects on all fours with H.M. Prison Service v. Beart (no. 2) [2005] IRLR 171. We cannot see the parallel. Beart was a case where the employer had failed, in breach of its duty under s. 4A of the Disability Discrimination Act , to make reasonable adjustments, and the employee had subsequently been (unfairly) dismissed; the employer sought to argue that the loss attributable to the earlier discrimination could not continue beyond the date of dismissal, but this Tribunal rejected that argument. It was, as Mr. Tolley pointed out, a premise of the compensation which was being claimed in that case that if the employer had complied with its duty under the 1995 Act the claimant would have retained her job. On the Tribunal's findings here that was not the case.[50]We accordingly dismiss the cross-appeal.