MS S A BULLIMORE v (1) POTHECARY WITHAM WELD SOLICITORS (2) MR P J M HAWTHORNE [2010] UKEAT 0189_10_2109

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0189_10_2109Case No Appeal No. UKEAT/0189/10Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS S A BULLIMOREAPPELLANT(1) POTHECARY WITHAM WELD SOLICITORS (2) MR P J M HAWTHORNERESPONDENT
Before
Mr Justice UnderhillDate 21 September 2010
[1]APPEARANCES For the Appellant MISS S A BULLIMORE (The Appellant in Person) For the Respondents MR OLIVER HYAMS (of Counsel) Instructed by: Messrs Pothecary Witham Weld 70 St George's Square London SW1V 3RD SUMMARY SEX DISCRIMINATION – COMPENSATION H, a partner in a firm of solicitors, PWW, by whose predecessor C had previously been employed gave an unfavourable reference to another firm, S, with whom she was seeking employment – Job offer withdrawn in consequence – Both H and S held to have been influenced by previous protected act on the part of C and thus all three held to have discriminated against C by way of victimisation – Tribunal holds that S's act in withdrawing the offer "broke the chain of causation", so that H and PWW were not liable for any loss of earnings consequent on the loss of the job - £7,500 awarded for injury to feelings by reference to Vento guidelines Held:(1) Tribunal wrong to find loss of earnings too remote – Observations on whether loss should be apportioned as between H and PWW on the one hand and S on the other(2) Award for injury to feelings unimpeachable, notwithstanding absence of explicit reference to incidence of inflation since Vento THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) INTRODUCTION On 6 January 2009 an Employment Tribunal sitting at London Central, chaired by Employment Judge Potter, found that the Appellant, who is a solicitor, had been victimised, contrary to section 20A of the Sex Discrimination Act 1975 , by the Second Respondent, Mr Peter Hawthorne, with whom she had previously worked at a firm called Witham Weld ("WW"). The principal act of victimisation consisted of the giving of a reference in qualified terms to a prospective employer, a firm called Sebastians, who were the Third Respondents before the Tribunal but who are not parties to the present appeal. At the time that he gave the reference Mr Hawthorne was a partner in the First Respondent firm ("PWW"). That decision was subsequently upheld by this Tribunal: see [2010] ICR 1009.[2]Following a hearing on 30 March 2009 the same Employment Tribunal awarded the Appellant compensation in the sum of £7,500 (plus interest). That award was in respect only of injury to her feelings: no award was made in respect of loss of earnings.[3]The Appellant appeals against the amount of the award of compensation. She has appeared before us in person, as she did before the Tribunal. The Respondents have been represented by Mr Oliver Hyams of counsel, who also appeared below. THE FACTS AND THE TRIBUNAL'S FINDINGS ON LIABILITY[4]The Appellant worked for WW, which subsequently merged to form PWW, between 1999 and 2004. The department in which she worked was managed by Mr Hawthorne. Following the termination of her employment she brought proceedings in the employment tribunal against WW, alleging both unfair dismissal and sex discrimination. Those proceedings were eventually settled.[5]In March 2008 Sebastians offered the Appellant a job, subject to satisfactory references. (She had in the meantime had a job with a firm called Carter Bells, but she had been made redundant.) One of the referees whom she named was Mr Hawthorne. The reference which he gave(a) referred to the Appellant's poor relationship with the partners and the practice director of WW;(b) referred, in answer to a question about how the employment had ended, not simply to the fact that she had resigned but (gratuitously) to the fact that she had brought employment tribunal proceedings against WW; and(c) said, in answer to a question about her strengths and weaknesses, that "she could on occasion be inflexible as to her opinions". In its Reasons for the liability decision the Tribunal described the reference as "damaging" and "negative" (see paras. 32 and 79). At para. 30 it said:
"… [T]he Second Respondent could not refer to Employment Tribunal proceedings following resignation without the intention of putting the prospective employer on enquiry in relation to such proceedings. Indeed, the Second Respondent seemed to indicate in his evidence that that was his intention. Furthermore, the reference to being on occasion inflexible as to her opinions was also likely to alert a prospective employer to a concern."
[6]The Tribunal found that the giving of a reference in those terms constituted a detriment and that Mr Hawthorne had been significantly influenced in what he chose to say by the fact that the Appellant had brought sex discrimination proceedings against WW: see the analysis at paras. 21-27 of our earlier decision ([2010] ICR 1021-3). The giving of the reference was thus an act of unlawful discrimination by way of victimisation (see section 4 of the 1975 Act). Because the employment relationship between the Appellant and WW no longer subsisted, the liability was under section 20A rather than the more familiar section 6 of the Act. [1] (The Tribunal's conclusion might, without reference to the detailed facts, seem rather harsh: the position of employers who are asked for references for employees with whom they have fallen out is a delicate one. But it was a conclusion which it was entitled to reach on the particular facts of the case: among the matters on which it relied was that Mr Hawthorne had apparently found no difficulty in 2004 in giving a bland reference for the Appellant to Carter Bells.)[7]Sebastians were concerned about the terms of the reference, and in particular about the tribunal proceedings mentioned in it: they asked for, and obtained, a copy of the ET 1 in those proceedings. The eponymous Mr Sebastian had a telephone conversation with Mr Hawthorne. Although the Tribunal treated this conversation as a distinct act of discrimination, its findings about what was said are not clear, though it is not suggested that Mr Hawthorne went back on the negative aspects of the written reference. But that uncertainty is of no practical importance for present purposes since no sensible distinction can be drawn between the effect of what was said on that occasion and the effect of what had already been said in the reference itself.[8]On the basis of the information received from Mr Hawthorne, including the information about the tribunal proceedings, Sebastians decided to change the offer of employment already made to the Appellant so as to incorporate a six months' probationary period during which she would be liable to dismissal on one month's notice. What ensued was described by the Tribunal at para. 6 of the Reasons for the remedy decision as follows:
"… [T]he Third Respondent decided to introduce this change via the recruitment agent rather than speaking directly to the Claimant. The Tribunal … found that there were miscommunications by the agent. Mr Sebastian from the Third Respondent did not take the course one might have expected, of picking up the telephone and speaking directly to the Claimant. The upshot was a Claimant unwilling to proceed on revised terms, including a probationary period, and the Third Respondent unwilling to proceed on the old terms without a probationary period, leading to an impasse and the end of the job offer."
The Tribunal made clear that, whatever the role of any miscommunication by the agent, the underlying position was that Sebastians "were not prepared to strive to resume the relationship, because they had come to the view that the Claimant was trouble" (para. 42 of the liability Reasons, recapitulated at para. 7 of the remedy Reasons). For convenience, we will hereafter refer to Sebastians as having "withdrawn" their offer: that is not wholly accurate, but it is a convenient shorthand for a state of affairs where, on the Tribunal's findings, they deliberately decided not to pursue the offer.[9]Importantly for the purpose of the issues in this appeal, the Tribunal found that Sebastians were not simply responding to a negative reference. It held that they were specifically influenced in the decision to withdraw the offer by the information that the Appellant had brought sex discrimination proceedings against WW, which constitutes an act of a kind specified in section 4 (1) of the 1975 Act (a "protected act"). Accordingly it held that the withdrawal constituted unlawful discrimination, by way of victimisation, on their part, contrary to section 6 (1) of the Act.[10]When it became clear that the job offer was not going to proceed, the Appellant asked PWW for a copy of the reference which Mr Hawthorne had given; and when she received it she wrote complaining of its terms. That led to a "grievance meeting" on 15 May 2008 at which, so the Tribunal found, both the Appellant and Mr Hawthorne behaved "inappropriately". The Judgment and Reasons on the liability issue are not quite explicit as to whether the Tribunal regarded Mr Hawthorne's conduct on this occasion as a further act of victimisation, though it seems from the remedy Reasons that it did (see para. 27 below); but for the reasons explained at para. 24 of the Judgment in the earlier appeal (p. 1024 F-G) no reliance is placed on this episode for the purpose of this appeal.[11]In the interval between the giving of the liability decision and the remedy hearing, the Appellant settled with Sebastians on terms that they paid her the sum of £42,500. The settlement agreement gives no breakdown of that amount, although the Tribunal noted at para. 4 of the remedy Reasons that it was far in excess of what might be expected by way of compensation for injury to feelings and that it could accordingly be taken to include a substantial element in respect of loss of earnings. THE APPEAL[12]The Appellant appeals against two aspects of the Tribunal's award -(1) the failure to make any award in respect of loss of earnings (Notice of Appeal paras. 7.1-7.3); and(2) the quantification of the award for injury to feelings (Notice of Appeal paras. 7.4-7.6). We consider the two aspects in turn. (1) LOSS OF EARNINGS[13]The Tribunal formally addressed the Appellant's claim for loss of earnings at paras. 61-63 of the Reasons. Having rejected a submission (based on Jameson v Central Electricity Generating Board [2000] 1 AC 455 ) to the effect that she was precluded from recovering from the remaining Respondents by reason of the settlement with Sebastians, it continued:"62. However on the facts this was a situation where by reference to the Tribunal's liability findings they were not concurrent torts; rather there were consecutive torts. The Third Respondent's actions, by reference to the passage quoted above from McGregor, were not a natural reaction to the victimisation in the form of slander and libel done by the Second Respondent. They were an unlawful action by professionals, aware they were doing wrong and doing it because they had decided that the Claimant was trouble. On these facts the Third Respondent's actions were a novus actus breaking the causal chain and the First and Second Respondents are therefore not liable for the loss of earnings that flowed from that new act.63. As the First and Second Respondents appeared to recognise in their written submissions, this does not prevent an award of compensation for injury to feelings, in relation to the initial reference, in relation to further words said to the Third Respondent by the Second Respondent and in relation to the conduct of the grievance hearing. These are separate torts that sound in damages, for non-pecuniary loss." (The "passage from McGregor" referred to is para. 6-055 of the 17 th edition of McGregor on Damages – para 6-059 of the 18 th edition - which the Tribunal had set out in its review of the relevant law (see para. 22 of the Reasons) and which deals with the effect of a " novus actus interveniens" in defamation cases: as to this, see para. 23 below.)[14]The reasoning in para. 62 is foreshadowed and underpinned by an earlier passage in the Reasons, at paras. 8 and 9, where the Tribunal says this:
"8. For remedy purposes, the Tribunal noted their conclusion on liability that the effective reason why the Claimant did not have a job with the Third Respondent was the unlawful manner in which the Third Respondent chose to deal with the information that it received about the Claimant and her previous proceedings for sex discrimination from the First and Second Respondents. This was unlawful conduct by a firm of solicitors who should have known better. They focussed their enquiries about the Claimant, as noted at paragraph 36 of the liability Reasons, on the Second Respondent rather than on the Claimant's more recent employer, Carter Bells, and then changed their offer, without explanation, in response. 9. For the Tribunal this was material to causation as against the First and Second Respondents. Injury to feelings was a foreseeable consequence of the negative terms of the reference they gave. Injury to feelings was also a foreseeable consequence of the Second Respondent's handling of the Claimant's grievance concerning the reference. However, from the Tribunal's perspective the Third Respondent's response to the information regarding the Claimant's previous proceedings was the reason she lost her job with them and has suffered loss of earnings. It was a free act of the Third Respondent, regardless of how desperately they needed the Claimant's services. It was not a natural reaction for a firm of solicitors, aware of the definition of victimisation and discrimination proceedings, to amend an offer of employment by reason of receiving information about such proceedings. It was a wrongful, illegal act intended to disadvantage and damage the Claimant. …"
[15]The starting-point in considering that reasoning is that it is trite law that the award of compensation in discrimination cases is governed by the same approach as is followed in the award of damages for common law torts: see Essa v Laing Ltd [2004] ICR 746 . We have here a case in which the Appellant has suffered loss as a result of the combination of two wrongful acts – the Respondents' in giving (for a proscribed reason) the damaging reference, and Sebastians' in (likewise, for a proscribed reason) withdrawing the offer following receipt of that reference. The torts in question can properly be described as "concurrent" in the sense that they both contributed to the occurrence of the loss, but it is also important to the analysis that they are consecutive, the Respondents' act being earlier in time and thus necessarily further up "the chain of causation". There are of course very many authorities which consider the question of whether the act of a subsequent tortfeasor - B - constitutes a " novus actus interveniens " relieving an earlier tortfeasor - A - of responsibility for damage to which his wrongful act has contributed. Those authorities are helpfully reviewed in chapter 6 of the 18 th edition of McGregor on Damages , at paras. 33-76 (although the introductory paragraphs of the chapter, particularly paras. 5–14, are also useful), and we do not enumerate them here [2] . The approach of the courts to issues of the remoteness of damage – which is the head under which this question falls – has been thoroughly reconsidered in recent years. It is now recognised that in the ultimate analysis questions of remoteness require a value judgment about whether a particular consequence, or type of consequence, of a wrongful act ought to sound in damages. The locus classicus is at paras. 69-75 in the speech of Lord Nicholls in Kuwait Airways Corporation v Iraq Airways Company [2002] 2 AC 883 , at pp. 1090-2 [3] , but in the particular context of novus actus interveniens the judgments of Laws LJ in Rahman v Arearose Ltd [2001] QB 351 (see paras. 29-33, at pp. 366-8) and McManus v Beckham [2002] 1 WLR 2982 (see paras. 37-42, at pp. 2999-3000) are particularly illuminating. In particular, it is now regarded as misleading, or at least inadequate, to analyse remoteness primarily in terms of causation. The modern approach is to seek (at least so far as possible - the phrase "breaking the chain of causation" seems ineradicable) to confine the language of causation to the purely factual issue of whether the damage would have occurred "but for" the defendant's wrongful act – an issue nowadays increasingly, although clumsily, labelled as "cause in fact". Questions of remoteness – "cause in law" – are judged by different criteria, such as whether the consequences in question were "direct" or "natural" or foreseeable, though no single criterion is determinative in all cases. The ultimate question is how far, in the circumstances of the particular case, the responsibility of the tortfeasor ought fairly to extend.[16]Applying that approach in the present case, the Tribunal did not entirely eschew the terminology of causation, but it is fair to say that its decisive reasoning was, rightly, not concerned with causation in the narrow sense. The paragraphs quoted above seem to make, essentially, three points:(a) that in withdrawing the offer Sebastians acted as a matter of their own free choice;(b) that they were acting "wrongfully and illegally", intending to harm the Appellant, in a way that would not be expected of a firm of solicitors;(c) that – principally because of (a) and (b) – their withdrawal of the offer in response to the information provided by the Respondents was neither a foreseeable nor a natural consequence of the giving of that information.[17]With respect to the Tribunal, we cannot accept that that reasoning justifies the conclusion that the Respondents ought not to be liable for the consequences of the use which Sebastians made of the information which Mr Hawthorne gave them. We take the three points in turn.[18]As to (a), there is certainly no rule that the free choice of the subsequent tortfeasor necessarily breaks the chain of causation: see the discussion in McGregor at paras. 6-043 ff.[19]As to (b), to say that Sebastians' conduct was "wrongful and illegal" is no more than to say that it was tortious. But there is, again, no rule that a subsequent tortious act necessarily "breaks the chain of causation": if there were, the problem of concurrent/consecutive tortfeasors would not arise. Some of the leading cases in which a prior tortfeasor has been held liable for the subsequent acts of a third party are concerned with acts which were not only tortious but criminal – see, e.g., Home Office v Dorset Yacht Co Ltd [1970] AC 1004 . We have the impression that the Tribunal regarded Sebastians' decision to withdraw the offer as a particularly heinous instance of discrimination. If so, we cannot see on what such a view was based: the act in question was wrongful, of course, and a firm of solicitors should have known better, but we see nothing in the liability or remedy findings rendering it peculiarly outrageous [4] . But even if this was indeed a particularly bad case of victimisation, that is not decisive of – and we doubt if it is even very relevant to – the question whether the "chain of causation" was broken, except to the extent that it rendered Sebastians' conduct unforeseeable or unnatural, as to which see below.[20]As to (c), it was in our view evidently foreseeable that Sebastians might react to the information provided by Mr Hawthorne in the way that they did, even if such a reaction would constitute unlawful discrimination; and (if and in so far as this expresses a different concept) that such a reaction was a direct and natural consequence of the supply of the information. The whole purpose of a job reference is that it should be taken into account when the recipient is choosing whether to offer the candidate a job. A negative or damaging reference, as the Tribunal expressly held this reference to be (see para. 5 above), is liable to have precisely the result that occurred in the present case. To use the language of Lord Reid in Dorset Yacht , withdrawal of the offer was "the very kind of thing" which was liable to happen.[21]Standing back from the Tribunal's particular reasoning, it seems to us that as a matter of policy and fairness the Respondents ought plainly to be liable here. When an employer (or ex-employer) gives, for an illegitimate reason, an adverse reference which leads to a prospective future employer deciding not to make, or to withdraw, a job offer to a candidate it is hard to see why that consequence should be regarded as too remote to attract compensation from the original employer: so far from being remote, it seems to us both close and direct. As the case-law shows, the giving of damaging references is a not uncommon form of victimisation (or alleged victimisation). It would be most unsatisfactory if a claimant who lost the opportunity of employment as the result of such a reference were unable to recover substantial damages from the person giving it. A remedy against the prospective employer, i.e. the recipient of the reference, will by no means always be available. It was only so in the present case because part of the damaging information supplied took the form of information about the earlier proceedings, which constituted a protected act, and Sebastians were held to have been motivated [5] by that specific information: it would have been otherwise if Mr Hawthorne had given an equally damaging reference but had not directly referred to any protected act.[22]Our conclusion does not depend on Mr Hawthorne having positively intended that Sebastians should withdraw their offer to the Appellant: it is enough that (with the relevant proscribed motivation) he gave a reference which was liable to have that effect. It may in fact be arguable that the Tribunal's finding at para. 30 of the liability Reasons (see para. 5 above) means that he did indeed have such an intention, in which case no question of the damage being too remote could arise. But it is not clear that that is what is meant, and it would be a very strong, and on the face of it rather surprising, finding.[23]We should in this connection say something about the analogy which the Tribunal found in the law relating to compensation for defamation. The passage in McGregor which it quoted refers to the old case of Vicars v Wilcocks (1806) 8 East 1, in which the plaintiff was wrongfully dismissed as a result of a slander by the defendant but the Court held that he could not claim in respect of that loss because it was too remote. As to that, Dr McGregor observes that the ratio of the decision depended on the "now discredited doctrine" [6] that where a wrongful act of the defendant causes a wrongful act of another, for which the claimant has a right to sue, the latter he could not have a right of action against the original wrongdoer also; and he goes on to observe that a different result might well be reached today, He refers specifically to dicta of Atkin LJ in Everett v Griffiths [1920] 3 KB 163, at p. 219; but his observation is also supported by the whole trend of recent developments in the law relating to remoteness and in particular by McManus v Beckham (above), which is a defamation case. It is not in fact clear what proposition the Tribunal intended to draw from the passage in McGregor to which it referred; but if – which in fact seems unlikely - it was relying on Vicars v Wilcocks we do not believe that it was right to do so. (We would add that although it is prima facie not unreasonable to look for analogies in the law of defamation in a case like this, because in both instances the wrongful act consists of a statement which injures the claimant's reputation, the two situations are not identical: in a case of discrimination the respondent must have a specific unlawful motivation, whereas that is not so in the case of defamation.)[24]It follows that the case must be remitted to the Employment Tribunal for the consideration of the Appellant's claim for loss of earnings. Mr Hyams submitted that if remittal were necessary it should be to the same Tribunal. The Appellant made no firm submission on this question, saying that she felt "torn". We accept Mr Hyams' submission (unless for any reason remittal to the same Tribunal is impossible). The Tribunal heard substantive argument on at least some aspects of the Appellant's loss, and although its decision on remoteness meant that a decision on quantum was unnecessary it did in fact express some views on the question of mitigation. It would be wasteful and unsatisfactory for the whole issue to have to be reconsidered from scratch by a tribunal with no previous background in the case; and we see no reason why the error of law which we have identified should make it difficult for the same Tribunal now to deal with the loss of earnings issue. It will of course be a matter for the Tribunal to what extent it needs to hear further evidence, and we would expect that a case management discussion would be necessary.[25]Our conclusions thus far mean that we need not deal with the various other points raised by the Appellant in relation to the loss of earnings claimed. Paras. 7.2 and 7.3 of the Notice of Appeal were in any event abandoned by her in oral argument. As regards para. 7.1.2, the Appellant's essential submission is that the Tribunal was precluded from deciding the case on the basis of " novus actus interveniens " by the way in which the argument proceeded: particular reliance was placed on the fact that Mr Hyams in his submissions explicitly disavowed any such case, as indeed the Tribunal appears to expressly record at para. 24 of the Reasons. There appears, with respect to counsel and the Tribunal, to have been a fair amount of confusion as to what points Mr Hyams was taking, and we prefer to decide the issues as a matter of substance rather than attempt to plumb that confusion.[26]We should, however, say something about one issue which was discussed in argument before us, although it did not fall to be dealt with in the Tribunal's Reasons. Any loss of earnings by the Appellant is the result of separate torts for which, as we have held, both the Respondents on the one hand and Sebastians on the other are liable as concurrent tortfeasors. The case was argued below (as the Tribunal expressly acknowledged at para. 93 of the liability Reasons) on the basis that liability for the loss would be "apportioned"- that is, that each would only be liable to the Appellant for a part, to be determined by the Tribunal, of the loss sustained. It was understood that the apportionment exercise to be carried out by the Tribunal would be of the kind conducted by a court in assessing contribution between tortfeasors under section 2(1) of the Civil Liability (Contribution) Act 1978 - which involves, essentially, an assessment of the parties' respective culpability and their degree of responsibility for the loss suffered – albeit that the situation calling for the exercise is different (since the 1978 Act is concerned with recovery by one tortfeasor against another and the claimant remains entitled to recover on a 100% basis from either). The Appellant made it clear in her oral submissions before us that it remained her position that such apportionment was appropriate and expressed some concern that if it were otherwise the basis of her settlement with Sebastians would be jeopardised. Since the parties were agreed that it was right to proceed in this way we should not disturb their agreement: the exercise is perfectly practicable to perform. But we should record, in case the issue arises in other cases, that we are not sure that the agreed approach is right in principle [7] . On the face of it, the loss of the Appellant's prospective job with Sebastians and her consequent loss of earnings would appear to constitute an indivisible injury of a kind for which, on the established case-law, apportionment is inappropriate. The only authority to which we were referred on this point was the helpful discussion at paras. 14-22 of the judgment of Laws LJ in Rahman (above, pp. 360-4); but the question has been considered in subsequent authorities, most notably Barker v Corus UK Ltd [2006] 2 AC 572 . We were also referred to the judgment of this Tribunal in Way v Crouch [2005] ICR 1362 : but even if the observations at para. 23 of that judgment are correct we are not sure that they provide any relevant guidance in the present case.(2) I NJURY TO FEELINGS[27]The "injury to feelings" for which the Tribunal said that it proposed to award compensation was identified at para. 63 of the Reasons as that arising from "the initial reference, … [the] further words said to [Sebastians] by [Mr Hawthorne], and … the conduct of the grievance hearing". It gave its reasons for awarding £7,500 at para. 70. There is no challenge to that reasoning as such and we accordingly need not reproduce it here, save to record that, unsurprisingly, the Tribunal referred to the decision of the Court of Appeal in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 . At para. 71 it said this:
"Further the Tribunal in their liability findings had noted a patent hostility and a thread of annoyance towards the Claimant. It could be said that the Second Respondent conduct was so extraordinary as to warrant a yet higher award for injury to feelings within the middle Vento band. The Tribunal reject that approach because of their consistent finding that there is here a two sided animosity. Some of what the Claimant has suffered she has brought on herself, for example by her inappropriate behaviour during the grievance meeting."
[28]In her Notice of Appeal the Appellant takes two points in relation to the award of £7,500, which we consider as follows.[29]First, it is said (at para. 74) that the Tribunal did not make clear whether it had taken into account the effect of inflation since Vento was decided in 2002. In Da'Bell v National Society for Prevention of Cruelty to Children [2010] IRLR 19 , which was decided on 28 September 2009, i.e. some six months after the Tribunal's decision, this Tribunal (Judge McMullen QC presiding) said that the time had come for the " Vento guidelines" to be updated in accordance with the RPI and set out the resulting figures.[30]This point was raised with the Tribunal itself by way of a review application. The application was refused on the basis that it did not satisfy the requirements of rule 34 of the Employment Tribunal Rules of Procedure . The Judge, however, "as a footnote" referred to Da'Bell and noted "that the award made in this case still lies above the bottom of the middle band".[31]As a matter of principle, employment tribunals ought to assess the quantum of compensation for non-pecuniary loss in "today's money"; and it follows that an award in 2009 should – on the basis that there has been significant inflation in the meantime – be higher than it would have been had the case been decided in 2002. But this point of principle does not require tribunals explicitly to perform an uprating exercise when referring to previous decided cases or to guidelines such as those enunciated in Vento . The assessment of compensation for non-pecuniary loss is simply too subjective (which is not a dirty word in this context) and too imprecise for any such exercise to be worthwhile. Guideline cases do no more than give guidance, and any figures or brackets recommended are necessarily soft-edged. "Uprating" such as occurred in Da'Bell is a valuable reminder to tribunals to take inflation into account when considering awards in previous cases; but it does not mean that any recent previous decision referring to such a case which has not itself expressly included an uprating was wrong.[32]In the present case we can see no sign that the Tribunal's award was not made by reference to the current value of money or by an unthinking application of one of the "band" boundaries: this, we think, is the point of the Judge's observation that the award fell inside the relevant band rather than at the edge.[33]The Appellant's second point challenges what is described at para. 7.5 of the Notice of Appeal as the Tribunal's suggestion in para. 71 of the Reasons that her award should be "reduced to reflect [her] conduct". Whether or not that is a wholly accurate reflection of what the Tribunal was saying in that paragraph (which we set out at para. 27 above), the short answer is that it is evident that it was considering, and considering only, the question whether the award should include any element to reflect the distress caused by Mr Hawthorne's conduct at the grievance meeting in May; but the Appellant has disavowed any intention to rely on what happened at that meeting for the purpose of her compensation claim (see para. 10 above).[34]We accordingly dismiss the appeal against the quantum of the award for injury to feelings. Note 1 A point was taken at the remedy hearing as to the application of section 20A to the claim against the current Respondents, since the partners in PWW are not identical to those in WW, and Mr Hawthorne as an individual was not the employer of the Appellant; but that issue was decided in the Appellant’s favour, and there is no cross-appeal. Note 2 See now also Chubb Fire Ltd v. Vicar of Spalding [2010] EWCA Civ 981 (in particular the judgment of Aikens LJ at paras. 58-64). Note 3 We were not in fact referred to Kuwait Airways itself, but the Appellant cited the recent decision of the Court of Appeal in Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404 , in which the key passage from Lord Nicholls’ speech is quoted by Sedley LJ at para. 14. Note 4 In this connection we should record a qualification about the finding in para. 9 of the Reasons that Sebastians intended to damage the Appellant. Statements about “intention” can be ambiguous. Of course Sebastians must have appreciated that the withdrawal of the job offer would cause the Appellant loss: that is self-evident. But there is no reason whatever – and nothing in the findings – to suggest that they had any animus against her: they were simply pursuing what they thought to be their best interests in distancing themselves from someone who they now thought (partly at least because of their knowledge of the protected act) was likely to be trouble. Note 5 We should make clear that we use the term “motivation”, and its cognates, as Lord Nicholls did in Nagarajan v London Regional Transport [1999] ICR 877 , to connote the respondent’s relevant “mental processes” (conscious or unconscious), and not as a synonym for “motive”. Note 6 In fact, as he points out, discredited since Lumley v Gye (1853) 2 E & B 216. Note 7 Cf. the doubts expressed on a similar, though not identical, question in HM Prison Service v Salmon [2001] IRLR 425 , at para. 20 (p. 429).

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