CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK (ACTING THROUGH ITS LONDON BRANCH) (KNOWN AS CALYON UK) v MR M I WARDLE [2010] UKEAT 0535_09_1407

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0535_09_1407Case No Appeal No. UKEAT/0535/09/SM UKEAT/0536/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK (ACTING THROUGH ITS LONDON BRANCH) (KNOWN AS CALYON UK)APPELLANTMR M I WARDLERESPONDENTAND MR M I WARDLEAPPELLANTCRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK (ACTING THROUGH ITS LONDON BRANCH) (KNOWN AS CALYON UK)RESPONDENT
Before
Mr Justice Keith Ms P Tatlow Mr S YeboahDate 14 July 2010
[1]APPEARANCES For Crédit Agricole Corporate and Investment Bank (acting through its London branch) (known as Calyon UK) MR CHRISTOPHER JEANS QC (of Counsel) & MR PAUL NICHOLLS (of Counsel) Instructed by: Messrs Osborne Clarke Solicitors One London Wall London EC2Y 5EB For Mr M I Wardle MS AMY STROUD (of Counsel) Instructed by: Messrs Pritchard Englefield Solicitors 14 New Street London EC2M 4HE SUMMARY RACE DISCRIMINATION Other losses STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES Impact on compensation The Employment Tribunal decided that the employee had been unfairly dismissed because he had complained of an earlier act of race discrimination and had been dismissed in breach of the standard dismissal and disciplinary procedure. The Employment Tribunal was found to have erred in a number of respects in its assessment of the employee's compensation, including(a) applying a discount to the award to reflect when the employee was likely to have left his employment had he not been dismissed as well as a discount to reflect the chance that he might not have obtained as remunerative a job in the future,(b) awarding the employee aggravated damages, and(c) applying the maximum uplift of 50% to the award under section 31(3) of the Employment Act 2002 . THE HONOURABLE MR JUSTICE KEITH Introduction The Claimant, Michael Wardle, was employed by the Defendant, a large French corporate and investment bank created when Crédit Agricole and part of Crédit Lyonnais merged in 2004 ("the bank"), from 23 May 2005 until he was dismissed on 31 July 2008. He had worked in the bank's London office (known as Calyon UK) as the head of exotic interest rate derivatives in the bank's market risk management department. An Employment Tribunal found that the bank had discriminated against him on the grounds of his nationality or national origin by failing to appoint him to the post of head of interest rate derivatives in the market risk management department on 30 January 2008, and that his dismissal on 31 July 2008 had been both unfair and an act of victimisation. Following a subsequent hearing, the Tribunal awarded Mr Wardle compensation of £374,921.62. Both Mr Wardle and the bank appeal against the level of the award, Mr Wardle contending that the award was too low, the bank contending that it was too high. It is inappropriate to call one of the appeals the appeal and the other the cross-appeal because both Notices of Appeal were served on the same day. The relevant facts[2]The facts which are relevant for the purposes of these appeals can be shortly stated. The successful candidate for the post to which Mr Wardle was not appointed was French. The Tribunal found that it was because he was French that he was the preferred candidate. That constituted the discrimination which had occurred on 30 January 2008, which was the date of the successful candidate's appointment to the post. On 27 June 2008, Mr Wardle lodged a claim of race discrimination. One of his complaints was that the appointment of the successful candidate had amounted to discrimination on the grounds of his nationality or national origin and therefore on racial grounds. It was the making of that complaint, received by the bank at the beginning of July 2008, which the Tribunal found had been the principal reason for Mr Wardle's dismissal, and was therefore an act of victimisation against him.[3]However, Mr Wardle's dismissal was unfair, not only for that reason, but also because (as the bank accepted) the bank had failed to complete the steps required by the standard dismissal and disciplinary procedure set out in Part 1 of Schedule 2 to the Employment Act 2002 . The Tribunal found that on 31 July 2008 Mr Wardle had been asked to attend a meeting with his line manager, Matthieu Giovachini. He was not told what it was to be about. He had been given about two minutes notice of it. At the meeting, Mr Giovachini told him that his working relationship with Gregoire Mazuel, the successful candidate for the post which Mr Wardle had applied for, had become untenable, that he had made insufficient efforts to maintain a good relationship with him, that there had been a complete loss of trust and integrity, and that his employment was being terminated with immediate effect. He was not allowed to return to his desk and was escorted from the building, though the Tribunal accepted that that was the bank's practice whenever someone was dismissed summarily. He appealed against his dismissal, but his appeal was dismissed, the Tribunal finding that the person conducting the appeal had failed to address the critical issue of whether Mr Wardle had been victimised because of the complaint of discrimination which he had lodged.[4]In its decision on remedies, the Tribunal described the bank's failure to follow the standard dismissal and disciplinary procedure as follows:
"The statutory procedure requires the employer to inform the employee in writing of the grounds that have led the employer to contemplate dismissing the employee, to inform him of the basis of those grounds, and then when the employee has had reasonable time to consider that information to hold a meeting with him to discuss the matter and thereafter to make a decision on whether to dismiss the employee. In the present case, [Mr Wardle] was suddenly called into a meeting and was told that he was being dismissed immediately. There was no step one letter and no step two meeting to discuss matters before reaching a decision. The meeting that took place was to inform [Mr Wardle] of a fait accompli , it was not a step two meeting. The [bank] is a large employer with huge resources available to it. It knew what the procedures were; it made a conscious and deliberate decision to ignore them. There was no good reason why the procedure could not have been followed."
In this decision, the Tribunal did not refer to the fact that step 3 of the procedure, which related to appeals, had been completed by the bank, though completion of step 3 had in effect been in name only, in view of the Tribunal's previous finding that the real issue raised by Mr Wardle on the appeal had not been addressed. The Tribunal's approach to compensation[5]Mr Wardle's annual basic salary was £104,000.00. The Tribunal found that his annual basic salary, had he been appointed to the post for which he had applied, would have been £120,000.00. Following his dismissal, he found new employment with the Financial Services Authority ("the FSA") as an associate. That employment commenced on 3 November 2008, and his annual basic salary was £105,000.00. Both his employment with the bank and his employment with the FSA enabled him to earn bonuses. The Tribunal found that, had Mr Wardle not been dismissed, he would have been paid bonuses by the bank in March 2009 and March 2010 equivalent to 70% of his salary, and that his bonus at the FSA was likely to have been equivalent to 20% of his salary for 2009 and thereafter.[6]The Tribunal had to assess for how long Mr Wardle would have been employed by the bank had he not been dismissed, for how long he was likely to remain employed by the FSA, and if he left the FSA, what he was likely to receive in terms of remuneration from any new employment. In deciding for how long Mr Wardle would have been employed by the bank had he not been dismissed, the Tribunal noted four things:(i) This was "a field of employment where job mobility is common and people do not usually have a lifelong career with one employer".(ii) Mr Wardle was 40 years old when he joined the bank in May 2005. In the 15 years prior to joining the bank, he had worked at four other banks, and the longest he had been with any of them was 5 years. The majority of his moves had been of his own choosing. He had been headhunted in the past, and was still in touch with headhunters.(iii) The banking crisis which began towards the end of 2008 and continued into 2009 was likely to improve by 2010, and "in the 'new world' where there are likely to be greater regulatory drives risk managers will be in demand".(iv) By April 2010, Mr Wardle would have worked for the bank for nearly 5 years, with a little over 2 years in the post for which he had applied, and he would have received almost all the payments to which he would have been entitled under the bank's Loyalty Plan. In these circumstances, the Tribunal found that there was a very strong chance, which it put as high as 80%, that Mr Wardle would have left the bank's employment at the beginning of April 2010, even if he had been promoted to the post for which he had applied. It also found that if he had not left the bank's employment then, the latest he would have been working for the bank was the end of 2024, 2024 being the year when Mr Wardle reaches the age of 60.[7]The Tribunal then addressed for how long Mr Wardle was likely to remain with the FSA and what his remuneration in any new employment would have been. It noted that the only reason for his difficulty in finding another job in banking following his dismissal was because of the "extraordinary circumstances that prevailed at that time in the financial services sector". It found that Mr Wardle would remain at the FSA for some time so that he could learn new skills and gain experience as a regulator. However, it viewed Mr Wardle as diligent and ambitious, and said that he would not "resign himself to a post where his earnings are lower if there is a potential for him to move into better paid work". The Tribunal's conclusion was that after Mr Wardle had been with the FSA for about three years, i.e. at the end of 2011, there was a 70% chance of him securing employment in the banking sector where his pay would be "at the same salary level as he enjoyed before". Mr Christopher Jeans QC for the bank argued that this was a reference to the salary which Mr Wardle would have enjoyed with the bank had he been promoted to the post he had applied for, because nothing else would have been consistent with how the Tribunal calculated Mr Wardle's award. Ms Amy Stroud for Mr Wardle did not argue otherwise.[8]The methodology which the Tribunal adopted to reflect these variables was two-fold. First, to reflect Mr Wardle's losses from April 2010 (when there was only a 20% chance that he would still have been employed by the bank) to the beginning of 2012 (by when there is only a 30% chance that he will not have found another job paying less than he was earning at the bank), the Tribunal awarded Mr Wardle 20% of the difference between(a) the net benefits he would have been earning at the bank during that period and(b) the net benefits he would be earning at the FSA during that period. Secondly, to reflect Mr Wardle's losses from the beginning of 2012 until the end of 2024, the Tribunal assessed Mr Wardle's annual loss at 30% of 20%, i.e. 6%, of the difference between (a) the net benefits he would have been earning at the bank at the beginning of 2012 and (b) the net benefits he would have been earning at the FSA at the end of 2011. The Tribunal then multiplied that annual loss by 12, presumably on the basis that it thought that the beginning of 2012 until the end of 2024 amounts to 12 years. In fact, it comes to 13 years. We were not told of that mistake during the hearing of the appeal. When we subsequently drew it to the attention of the parties, the bank questioned whether it really was a mistake. After all, Mr Wardle will reach the age of 60 on 15 July 2024, and the Tribunal may have wanted to limit his award to 12 years from the beginning of January 2012, i.e. to the beginning of the year in which he reaches 60. That is not correct. The Tribunal thought that Mr Wardle's loss would extend to the end of 2024. That is why para. 47 of the decision is headed "1 January 2012 – 31 December 2024". This was, of course, the kind of error which should have been raised by asking the Tribunal to review its decision. Presumably it was not asked to do so because the error had not been noticed, but since it was a mathematical error only, we propose to correct it.[9]In addition to his loss of earnings, the Tribunal awarded Mr Wardle £10,000.00 for injury to his feelings for both the discrimination of him when he was not promoted to the post he had applied for and the victimisation of him for lodging the complaint of race discrimination. It also awarded him aggravated damages of £5,000.00. It explained its reasoning as follows:
"It is a matter of common sense that the dismissal, which came suddenly and out of the blue and which [Mr Wardle] rightly felt was attributable to his complaints of race discrimination, would have caused worry, anxiety, hurt and anger. Although there was not a campaign of harassment or discrimination over a prolonged period of time, these were two serious acts of discrimination. The dismissal was the more serious because it suddenly deprived [Mr Wardle] of his livelihood and was done as an act of retaliation because [Mr Wardle] had exercised his legal right to bring proceedings for race discrimination. In our view this case fell within the middle band as identified in Vento v Chief Constable of West Yorkshire Police . We also concluded that the dismissal of [Mr Wardle] in those circumstances was high-handed, malicious and oppressive, and that any award that we make should contain an element of aggravated damages." (Emphasis supplied)
Finally, the compensation which the Tribunal awarded Mr Wardle for the period following his dismissal (which included the £10,000.00 for injury to feelings and the £5,000.00 for aggravated damages) came to £179,898.44. The Tribunal increased that amount by 50% pursuant to section 31(3) of the 2002 Act. That "uplift" amounted to £89,949.22. Mr Wardle's retirement date[10]A number of issues arise on the appeals, but logically the first relates to the Tribunal's finding that if Mr Wardle had not left the bank's employment at the beginning of April 2010, the latest he would have worked for the bank would have been until the end of 2024, which was when he would have been 60. That finding is challenged by Mr Wardle. His case is that the Tribunal should have found that if he had still been working for the bank when he was 60, he would have continued working for the bank until he reached the age of 65. Three reasons are advanced for that. First, Mr Wardle's contract of employment is said to have stipulated 65 as his age of retirement. Secondly, the term of Mr Wardle's mortgage is said to be due to expire when he is 64. Thirdly, there was no evidence contradicting Mr Wardle's evidence that he would have chosen to work until he reached 65.[11]We do not think that the documents bear out what Mr Wardle says. Mr Wardle did not have a contract of employment. If he did, we have not seen it. The document in the appeal bundle is a letter setting out the terms of Mr Wardle's employment which he signed. That contains no reference to a retirement age. The document which contains a reference to a retirement age is one from AXA (who operated the bank's personal pension plan) which explained the benefits of his membership of the plan. That recorded his "selected" retirement age of 65, but it did not say whether it was AXA who selected it in order to illustrate what his pension benefits would be if he retired at 65, or whether it was selected by Mr Wardle as the date when he planned to retire. Secondly, the appeal bundle contains an offer of a mortgage to Mr Wardle from First Direct dated 9 February 2008. It referred to Mr Wardle having sought a mortgage with a term of 20 years, but this was a mortgage offer, and there is nothing to suggest that Mr Wardle's evidence was that this was the offer he accepted.[12]Having said that, we would not want Mr Wardle's case to founder on the rocks of inadequate documentation, and for the purposes of this appeal, we are prepared to assume in Mr Wardle's favour that there was a compulsory retirement age of 65 at the bank. That did not mean, of course, that Mr Wardle intended to stay on until 65. All it meant was that he could be required to retire at that age. Again, assuming in Mr Wardle's favour that the term of his mortgage was due to expire in 2028 when he was 64, that did not mean that he intended to work until then, let alone that he intended to work for the bank until then. And the absence of any evidence from the bank contradicting Mr Wardle's evidence of when he proposed to retire is hardly significant. You would not expect the bank to have any evidence which it could call on the topic. The fact is that it was open to the Tribunal to doubt whether Mr Wardle would have continued working until he was 65 even if there was no evidence contradicting Mr Wardle's own evidence. In any event, the Tribunal's finding was a finding of fact, and since it is not said that there was no evidence to support the Tribunal's finding, the only basis on which it can be challenged is on the footing that no Tribunal could reasonably have reached such a conclusion. That is unarguable, and in any event Mr Wardle's legal team has not laid the groundwork for an argument of that kind by asking for the Employment Judge's notes of the evidence, since it would be important to see what Mr Wardle himself told the Tribunal about the issue. It follows that this ground of appeal must be dismissed. Loss of future earnings[13]The 80% discount . Mr Wardle's next ground of appeal relates to the Tribunal's assessment of when he was likely to have left the bank's employment had he been promoted to the post for which he had applied and had not been dismissed in 2008. The Tribunal's finding that there was an 80% chance that that would have happened in April 2010 after Mr Wardle had received his bonus for 2009 is criticised on the basis that it took no account of the fact that he would have been unlikely to leave the bank for a job in which the remuneration package was less than the package he would have continued to get at the bank. He was therefore unlikely to have left the bank for the post he was offered at the FSA, and the Tribunal's error was in failing to take that into account when it decided what the chances were of him leaving the bank at some time in the future had he been promoted to the post for which he had applied and had he not been dismissed.[14]We agree with that argument to this extent: Mr Wardle would only have left the bank after he got his 2009 bonus if he had a job to go to at which his remuneration package would have been equivalent to, or greater than, his package at the bank. But there is absolutely nothing in the Tribunal's decision which suggests that it thought otherwise. Its assessment in para. 32 of its decision of the chances of Mr Wardle leaving the bank in April 2010 must have proceeded on the assumption that he would not have chosen to leave the bank for a job which did not pay as much. The fact that the only job he could find following his summary dismissal in July 2008 was the lower paid job with the FSA does not begin to mean that he could not have got a better job in April 2010 following a decision to change jobs. What Elias LJ said in Abbey National plc v Chagger [2010] ICR 397 at [69] and [71] (which we set out in [15] below) is highly relevant here. There is therefore no basis for challenging the Tribunal's assessment of when Mr Wardle would have been likely to leave the bank's employment had he been promoted to the post for which he had applied and had not been dismissed.[15]There is, though, a more fundamental criticism of the Tribunal's decision to discount Mr Wardle's award for loss of earnings from April 2010 by 80% to reflect the likelihood of him leaving the bank by then. It is said that as a matter of principle it was wrong for the Tribunal to have applied any discount at all. The argument relies on what the Court of Appeal said in Chagger was the appropriate approach to the calculation of loss of future earnings in cases in which the employee's dismissal is discriminatory, though the Tribunal cannot be criticised for not giving effect to Chagger , because the Court of Appeal handed down its judgment in Chagger two months after the Tribunal's decision on Mr Wardle's remedies. Among the issues which the Court of Appeal addressed was whether Mr Chagger's loss of future earnings should have been limited to the period during which he would have remained in Abbey National's employment had he not been dismissed. The relevant passages in the judgment of Elias LJ for present purposes are at [69]-[72]:
"69. … The task [of the employment tribunal] is to put the employee in the position he would have been in had there been no discrimination; that is not necessarily the same as asking what would have happened to the particular employment relationship had there been no discrimination. The reason is that the features of the labour market are not necessarily equivalent in the two cases. The fact that there has been a discriminatory dismissal means that the employee is on the labour market at a time and in circumstances which are not of his own choosing. It does not follow therefore that his prospects of obtaining a new job are the same as they would have been had he stayed at Abbey. For a start, it is generally easier to obtain employment from a current job than from the status of being unemployed. Further, it may be that the labour market is more difficult in one case compared with another. For example, jobs may be particularly difficult to obtain at the time of dismissal and yet by the time they become more plentiful, when in the usual course of events Mr Chagger might have been expected to have changed jobs had he remained with Abbey, he would have been out of a job and out of the industry for such a period that potential employers will be reluctant to employ him. In addition, he may have been stigmatised by taking proceedings, and that may have some effect on his chances of obtaining future employment. 70. The result of these factors is that the discriminatory dismissal does not only shorten what would otherwise have been Mr Chagger's period of employment with Abbey; it also alters the subsequent career path that might otherwise have been pursued. 71. It follows that, in our judgment, the period during which Mr Chagger would have remained in employment with Abbey had there been no discrimination is irrelevant given that this is a case where he would only leave for another job. The employment tribunal concluded that Mr Chagger would not have left Abbey unless and until he was able to move to a post at least as favourable as his Abbey job. In our view that is a wholly realistic assumption; few employees voluntarily leave employment for a worse paid job. We are not sure that Abbey were contending otherwise. 72. On the facts as found by the tribunal, the proper assessment of loss is therefore to be determined by asking when Mr Chagger might expect to obtain another job on an equivalent salary to his Abbey salary. His loss is fixed by that period. Whether that is shorter than the period he would have served with Abbey, or whether it is longer and includes time when, but for the discriminatory dismissal, he would have been employed elsewhere, is immaterial." (Emphasis supplied)
The passages which we have highlighted show, so it is said, that the exercise which the Tribunal conducted and which resulted in the conclusion that there was an 80% chance that Mr Wardle would have left the bank's employment in April 2010 was irrelevant. Given that Mr Wardle would only have left the bank's employment for a job which paid the same or better, the only thing which the Tribunal needed to do was to assess when Mr Wardle might be expected to get a job with a remuneration package equivalent to the one he had at the bank. Putting it another way, it was wrong for the Tribunal to have applied any discount at all for what it thought was likely to happen in April 2010 when it was discounting Mr Wardle's loss of future earnings by 70% anyway to reflect the likelihood that by the beginning of 2012 his remuneration package was likely to have been no different from that which he would have enjoyed had he remained with the bank. The Tribunal ignored the impact of double accounting for what Ms Stroud said were "the same, or overlapping, probabilities".[16]The bank's response is that where there are two variables, each of which affects the employee's loss, the discount to the employee's award to give effect to those variables has to be applied cumulatively. Again, that is a concept regularly applied in the field of personal injuries. Collett v Smith [2008] EWHC 1962 (QB) is a good illustration of its application. In that case, the High Court had to assess the losses incurred by a professional footballer who had suffered an injury which ended his career. Swift J discounted his award to reflect the fact that his chances of playing in the Premier League for a part of his career were only 60%, and she applied a further discount of 15% to the award to reflect the fact that his career might have ended earlier than it would have done (if he had not been injured) as a result of a later career-ending injury. An example of the application of the principle in the employment field is Ministry of Defence v Wheeler [1998] ICR 242 . Accordingly, the bank submits that it was entirely appropriate to discount Mr Wardle's loss of earnings by 80% from April 2010 and by a further 70% from the beginning of 2012 to the end of 2024.[17]There can be no argument but that the cumulative approach is correct if there really are distinct and entirely separate variables, each of which affects the employee's loss. This is where the bank's argument breaks down. One of those variables – namely when Mr Wardle was likely to have left the bank's employment – was irrelevant because it did not affect Mr Wardle's loss. To understand why, it is necessary to turn to first principles. The Tribunal's award had to put Mr Wardle in the position which he would have been in had he not been discriminated against, i.e. to put him in the position which he would have been in if he had been promoted to the post for which he had applied and if he had not been dismissed. That involved, in broad terms, assessing what Mr Wardle would have earned if he had not been dismissed and deducting from that what he will in fact be earning in the light of the changed circumstances brought about by his dismissal. There can be no doubt that when it came to the latter – i.e. assessing what Mr Wardle will be earning in the future – the Tribunal had to evaluate the chance of a time coming when Mr Wardle will be no worse off than he would have been had he continued to enjoy the level of remuneration which he had enjoyed at the bank. So the Tribunal was entirely correct to apply a discount to Mr Wardle's losses from the beginning of 2012 to reflect the chance that he would still be worse off from then.[18]However, different considerations apply to the other factor in the equation which the Tribunal had to assess, namely what Mr Wardle would have earned if he had been promoted to the post for which he had applied and if he had not been dismissed. Since he would only have left the bank for a post which rewarded him no less well than the post for which he had applied, the fact that there was an 80% chance of him leaving the bank in 2010 is irrelevant. If he would have stayed on, he would have been on the same salary and benefits. If he would have moved, he would have been on a salary and benefits no worse than he would have been on had he stayed, because he would not have left the bank for a post with a less remunerative package. The strong likelihood that he would have left the bank in April 2010 does not affect what he would have been earning thereafter. The only difference is that he would have been earning it from another employer and not the bank. Accordingly, the Tribunal was wrong to discount Mr Wardle's award by 80%, though it was not so much a case, to use Ms Stroud's phrase, of "the same, or overlapping, probabilities". It was more a case of distinct and separate probabilities, but only one of which affected Mr Wardle's loss.[19]Career-long loss . For the Tribunal to have included in its award a component to reflect Mr Wardle's losses, not only until the end of 2011, but also to the end of 2024, the Tribunal was treating Mr Wardle's case as one in which there would be at least an element of career-long loss. That is said by the bank to be completely inappropriate in this case. It was not as if Mr Wardle had been employed in a sector where employees remain with their employer for the whole, or at least most, of their working life, such as employment in the armed services or the police force. Indeed, the Tribunal found the very opposite, as we have said, when it talked about the banking sector being "a field of employment where job mobility is common and people do not usually have a lifelong career with one employer". Admittedly, in Chagger , it was held that career-long loss could potentially be awarded to an employee in the banking sector, but that was a case in which the Tribunal had found that the employee had lost his career in banking because of the stigma which had attached to him for taking legal proceedings against his employer. No such allegation was made in this case. There was, in short, every chance that by the beginning of 2012 Mr Wardle would be working again in the banking sector in a post where his salary (and presumably his other benefits) would have been the same had he continued working at the bank in the post for which he had applied. That must have been the view of the Tribunal, because it put that chance as high as 70%.[20]The bank's core point is that when the chance of there being no loss at all for a particular time in the future is as high as that, the analysis of that loss becomes too speculative to enable a sensible or reliable conclusion to be reached. For that reason, the bank contends that the Tribunal should not have awarded Mr Wardle any sum for loss of earnings from the beginning of 2012. But it goes further than that. Because there was every chance that by the beginning of April 2010 Mr Wardle would have left the bank's employment had he not been dismissed in 2008 – a chance which the Tribunal put as high as 80% – the chance of there being no loss at all from then was so high that the analysis of Mr Wardle's loss from April 2010 was also too speculative to enable a sensible or reliable conclusion to be reached. The latter argument can now be put to one side in the light of our view about the inappropriateness of the 80% discount at all.[21]To evaluate this argument, it is necessary once again to return to first principles. When a tribunal is having to assess the likelihood of something happening or not happening in the future, the tribunal is having to evaluate the chance of it happening or not. It is not deciding whether or not on the balance of probabilities something will happen or not. So if, for example, there is as much as a 60% chance of an employee's new job paying as much as his old job, it would not be right to award him nothing on the basis that it is more probable than not that he will not suffer any loss. That would be to ignore the fact that there is a 40% chance that there will be some loss. That needs to be factored into the equation. That is done by discounting what would otherwise have been the employee's full award by the appropriate percentage. The principle is well established in the field of personal injuries, but it applies to employment law as well: see Ministry of Defence v Cannock [1994] ICR 918.[22]So in this case the Tribunal had to evaluate the chance of Mr Wardle getting a job in the banking sector at a level of remuneration which he would have been enjoying, whether with the bank or another employer, by the time he would have left the FSA at the end of 2011. Identifying what that chance was was not going to be an easy task. As Mummery LJ said in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 at [33], it is a hypothetical question which needs careful thought before it can be properly answered. It requires a forecast to be made about the course of future events. But provided that the exercise can be done, that is the exercise to be done.[23]The Employment Appeal Tribunal has acknowledged that there may be circumstances when the future is so uncertain that with the best will in the world the exercise simply cannot be done. Thinking of that kind was expressed by Elias P (as he then was) with his usual clarity in Software 2000 Ltd v Andrews [2007] ICR 825 . At [53], he said:
"The question is not whether the tribunal can predict with confidence all that would have occurred; rather it is whether it can make any assessment with sufficient confidence about what is likely to have happened, using its common sense, experience and sense of justice. It may not be able to complete the jigsaw but may have sufficient pieces for some conclusions to be drawn as to how the picture would have developed. For example, there may be insufficient evidence, or it may be too unreliable, to enable a tribunal to say with any precision whether an employee would, on the balance of probabilities, have been dismissed, and yet sufficient evidence for the tribunal to conclude that on any view there must have been some realistic chance that he would have been. Some assessment must be made of that risk when calculating the compensation even though it will be a difficult and to some extent speculative exercise."
In summarising the principles which emerged from the cases, Elias P added at [54] that the circumstances may be such "that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction … can be made". He said that it was "a matter of impression and judgment for the tribunal". He acknowledged that there could be "limits to the extent to which it can confidently predict what might have been", but tribunals had to recognise that "a degree of uncertainty" was an "inevitable feature" of such an exercise, and the mere fact that "an element of speculation" was involved was not a reason for refusing to embark on the exercise.[24]It should be noted that the bank's quarrel is not with the percentages which the Tribunal ultimately arrived at, but on the ability of any tribunal to predict Mr Wardle's future with the precision which the Tribunal did. We do not agree. In our judgment, this was a case in which the Tribunal could come to realistic judgments about Mr Wardle's future. Mr Wardle's career to date, combined with industry-related factors such as the mobility of a highly ambitious workforce, enabled the Tribunal to form a realistic judgment about how likely it was that Mr Wardle would have left the bank's employment after getting his bonus for 2009. These factors, combined with the experience in regulatory matters which Mr Wardle was acquiring at the FSA, enabled the Tribunal to form a realistic judgment about when Mr Wardle was likely to be earning what he would have been earning, whether with the bank or another employer. The degree of uncertainty in the process was no more than was inevitable when attempting to predict someone's career path, and was not so great as to make such conclusions as were reached too speculative.[25]We have also stood back from the particular predictions which the Tribunal made, and asked ourselves whether this was the sort of case in which the Tribunal could realistically conclude that there would be a measure – albeit a small measure – of career-long loss. We think that this was a conclusion open to the Tribunal. It was not as if Mr Wardle was at the threshold of his career. He was 44 years old when he was dismissed. Nor did the Tribunal make extravagant assumptions about the age which Mr Wardle would continue to work to. It applied a cut-off point at the end of the year when he would have reached the age of 60. This is more a matter of impression than anything else – not something susceptible to much analysis – but our strong instinct is that it was open to the Tribunal to think in terms of Mr Wardle's losses extending throughout the rest of his working life.[26]The sliding scale . That brings us to a related argument advanced on the bank's behalf. Having decided that there was only a 20% chance that Mr Wardle would have remained at the bank after the beginning of April 2010 by when he would have received his bonus for 2009, the Tribunal reduced the award for loss of earnings by 80%, but no more than 80% , for the whole of the period up to the end of 2024. If there was an 80% chance that Mr Wardle would have left the bank at the beginning of April 2010, did not the chances of him leaving the bank increase over the years thereafter? If so, the Tribunal should, so the argument goes, have reduced the award by progressive percentages greater and greater than 80% for each year after 2010. Once again, that argument falls away in the light of what we have said about the 80% discount. But that still leaves the 70% discount. Having decided that there was only a 30% chance that Mr Wardle would be earning from the end of 2011 less than what he would otherwise have been earning, the Tribunal reduced the award for loss of earnings by a further 70%, but no more than 70% , for the remainder of the period up to the end of 2024. If there was a 70% chance that Mr Wardle's remuneration from the beginning of 2012 would have matched what he would otherwise have been earning before, did not the chances of him doing so increase over the years thereafter? If so, the Tribunal should likewise have reduced the award by progressive percentages greater and greater from 70% for each year after 2012.[27]We see no answer to that argument. It only made sense for the percentage of 70% to have been frozen at December 2011 if the chances of Mr Wardle earning less than he would otherwise have earned were no greater in later years than they were in December 2011. That reflects what the Court of Appeal said in O'Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615 . The relevant part of the headnote (which accurately summarised the Court's judgment) reads:
"… where the question is whether there was a chance of the employee being fairly dismissed in the future, the percentage chance is likely to vary according to the timescale under consideration. Thus, there may be a 20% chance of dismissal in six months but a 30% chance in a year. In such circumstances, it may not be possible to identify an overall percentage risk."
In other words, the risk is to be calculated by reference to a sliding scale which reflects the fact – if it be the case – that the degree of the risk will change over time. The Tribunal's error was that it did not factor into its calculations the possibility that over the years the chances of Mr Wardle earning as much as before would increase.[28]Both sides agreed that if we went along with this argument, the better course would be for us to identify the appropriate percentages ourselves, rather than remit the case back to the Tribunal for that exercise to be carried out. We agree. The issue is not one on which the parties wish to call further evidence, and its resolution is simply a matter of judgment in the light of the Tribunal's findings of fact. The Employment Appeal Tribunal has been discouraged by the Court of Appeal – in Buckland v Bournemouth University Higher Education Corporation [2010] IRLR 445 at [50] and [57]-[58] – from remitting cases to employment tribunals unnecessarily when the Employment Appeal Tribunal is in as good a position to decide the matter itself.[29]The Tribunal thought that there was only a 70% chance that Mr Wardle would be back in a post with a bank at the beginning of 2012 which paid as well as what he would have been getting had he not been dismissed. That is understandable because he would not have worked for a bank for over three years then, and his recent experience would only have been in the regulatory field. Since the Tribunal proceeded on the basis that the first post he would get with a bank after his spell in the regulatory field would be 30% likely to pay him less than what he would have been getting had he continued working for banks, our task is to assess what his chances were in the years thereafter of moving to better and better paid posts until he achieved parity with what he would otherwise have been earning.[30]Three factors have influenced our thinking here. First, Mr Wardle would have been seeking, or been headhunted for, posts at a time when he was already working for a bank. Secondly, in addition to recent experience with working at a bank, he would have the additional experience of having worked in the financial services sector in the regulatory field. Both those factors would have stood him in good stead. But thirdly, by his mid-fifties, he would not be as likely to want to take on new challenges, and he might be inclined to stay where he was until he ceased working in the banking sector at the end of 2024. Weighing up these imponderables, we think that there was a 50% chance that by the end of 2015 he would have achieved parity with what he would otherwise have been earning. If he had not achieved parity by then, we think there was another 50% chance that by the end of 2019 he would have achieved that parity, but if he had not achieved it by then, he never would. The effect of these findings means that for the four years from 2012 to 2015 inclusive, the 70% discount applied by the Tribunal stands, for the four years from 2016 to 2019 inclusive the appropriate discount is 85%, and for the five years from 2020 to 2024 inclusive the appropriate discount is 92.5%.[31]Pension loss . There is one other element in the Tribunal's award for loss of future earnings for which the Tribunal is criticised. It relates to Mr Wardle's pension loss. Mr Wardle's terms of employment recorded that the bank contributed a sum equivalent to 10% of the basic salary of those employees such as Mr Wardle who had elected to join the bank's personal pension plan. In addition, his terms provided that if Mr Wardle made his own contributions to the pension plan, the bank would match those contributions by up to 2% of his basic salary. The Tribunal found that Mr Wardle had contributed 2% of his basic salary to the pension plan, and that those contributions had been matched by the bank. Despite that, the Tribunal calculated Mr Wardle's loss of earnings on the basis of a pension loss of 10% of his basic salary.[32]On behalf of Mr Wardle, it is argued that the Tribunal fell into error in this respect. It should have calculated his loss of earnings on the basis of a pension loss of 12% of his basic salary because of the additional 2% contributed by the bank. The bank's case is that the Tribunal calculated the pension loss correctly, since the additional 2% was paid to match Mr Wardle's own contributions, and his own contributions had the effect of reducing his loss of salary by 2%.[33]We agree with the outcome contended for by Mr Wardle. The contributions made to the pension plan for his pension amounted to 14% of his basic salary: 10% contributed by the bank, 2% by Mr Wardle, and a further 2% by the bank to match Mr Wardle's contributions. Unquestionably Mr Wardle's contributions had the effect of reducing his loss of salary by 2%, but since the Tribunal treated his loss of earnings as his salary plus the pension contributions, it was appropriate to reduce the aggregate of the contributions of 14% by the 2%. The Tribunal therefore fell into error by calculating his pension loss as the equivalent of 10% of his basic salary. It should have been 12% of his basic salary.[34]Another point is taken on Mr Wardle's pension loss. Mr Wardle's terms of employment recorded that the bank's contribution to the pension plan "increases with length of service, rising to 12% of basic annual salary at 10 years or more". It was not suggested that this provided for incremental increases of 0.2% of Mr Wardle's basic salary in each of the first 10 years of his employment. It was in effect acknowledged, therefore, that the effect of this provision was that after 10 years of service, i.e. from May 2015, the bank's contributions would have gone up to 12% of Mr Wardle's basic salary. The bank would still have been matching Mr Wardle's own contributions of 2% of his basic salary, since Mr Wardle's terms recorded that that benefit was "[i]n addition" to the increase in the bank's contributions after 10 years of service.[35]Realistically, the bank did not contend that the Tribunal was not required to do that. Just as Mr Wardle's pension loss up to May 2015 was 12% of his basic salary, it should have been 14% of his basic salary from then. The bank's case is that since this was so far in the future, any award for pension loss from May 2015 was too speculative. That argument stands or falls with what we have said about career-long loss. Since we have concluded that this was not a case in which career-long loss was inappropriate, Mr Wardle's pension loss from May 2015 had to be calculated at the rate of 14% of his basic salary. Aggravated damages[36]In the employment field, "compensatory damages may and in some instances should include an element of aggravated damages where, for example, the [employer] may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination". That was what May LJ said in Alexander v The Home Office [1988] ICR 685 at p.692F. That shows that aggravated damages are not intended to be punitive, but to provide additional compensation for the employee when the injury to the employee's feelings as a result of being discriminated against have been aggravated by particularly reprehensible behaviour on the part of the employer. Despite that, in Scott v Commissioner of Inland Revenue [2004] ICR 1410 , Sedley LJ at [35] rejected the suggestion that aggravated damages "should be aggregated with and be treated as part of the damages for injury to feelings", though when a tribunal is having to assess "non-pecuniary loss … under the various headings of injury to feelings, psychiatric damage and aggravated damage", Mummery LJ in Vento said at [68] that regard should be had to the "overall magnitude" of such awards. Mummery LJ added:
"In particular, double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage. The extent of overlap will depend on the facts of each particular case."
[37]As can be seen from the passage of the Tribunal's decision which we quoted in [9] above, the Tribunal thought that the circumstances of Mr Wardle's dismissal constituted conduct which was high-handed, malicious and oppressive. However, it is difficult to see from what the Tribunal had previously said in that passage what particular features of the circumstances of Mr Wardle's dismissal amounted to conduct which could be characterised in that way. The fact that his dismissal "suddenly deprived [him] of his livelihood" did not on its own justify that characterisation. Every dismissal deprives the employee who is dismissed of their livelihood. The fact that Mr Wardle was summarily dismissed (albeit with a payment in lieu of notice) was not, on the face of it, out of the ordinary. The bank's grounds of appeal said that its evidence before the Tribunal had been that if someone was to be dismissed, they would be dismissed summarily "in order to prevent any interference with its business and its confidential information", and there is nothing in the Tribunal's decision which suggested that this evidence was not accepted. And the fact that Mr Wardle's dismissal was "an act of retaliation because [Mr Wardle] had exercised his legal right to bring proceedings for race discrimination" could be said about any case of victimisation, and by no means every case of victimisation results in an award of aggravated damages in addition to damages for injury to feelings.[38]Ms Stroud argued that the high-handed, malicious and oppressive conduct to which the Tribunal must have been referring to was the fact that Mr Wardle had had no warning of what was going to happen to him and that his dismissal was a fait accompli , denying him the opportunity of being told beforehand why the bank was minded to dismiss him and of arguing against it. If that is what the Tribunal had in mind, the Tribunal did not spell that out when it was explaining what the relevant conduct was, but in any event, as Mr Yeboah pointed out in the course of argument, those were the very things which steps 1 and 2 of the standard dismissal and disciplinary procedure required the bank to do, and it was the bank's failure to comply with those requirements which had resulted in the very substantial "uplift" to Mr Wardle's award. If it is important to avoid double recovery as between aggravated damages and damages to injury to feelings, it is just as important to avoid double recovery as between aggravated damages and the increase in the award sanctioned by section 31(3) of the 2002 Act.[39]We have considered whether, despite these flaws, the award can stand on the basis of what Judge McMullen QC said when he expressed the view on "the sift" that the challenge to the award of aggravated damages did not disclose a point of law with a realistic prospect of success, which was:
"Looked at holistically, the award for injury to feelings of £15,000.00 is about right."
That may be so, but such an argument in effect resurrects the contention which was soundly rejected in Scott . For these reasons, therefore, the award of aggravated damages has to be set aside. The "uplift"[40]Sections 31(3) and 31(4) of the 2002 Act (which have been repealed since Mr Wardle's dismissal) provide, so far as is material:
"(3) If … 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, not so as to make a total increase of more than 50 per cent. (4) The duty under subsection … (3) to make a[n] … increase of 10 per cent does not apply if there are exceptional circumstances which would make a[n] … increase of that percentage unjust or inequitable, in which case the tribunal may make no … increase or a[n] … increase of such lesser percentage as it considers just and equitable in all the circumstances."
As we have said, the "uplift" which the Tribunal made to the award was 50% of it, which was the maximum uplift it could make. The Tribunal gave no reason for that other than what appears in the passage set out in [4] above. It simply said that in those circumstances the Tribunal thought it "just and equitable to uplift any award" it made by 50%.[41]In Lawless v Print Plus (UKEAT/0333/09), the Employment Appeal Tribunal (Underhill P presiding) outlined some of the "headline points" relevant to an employment tribunal's consideration of whether to make an uplift to an award under section 31(3):
"(1) Section 31(3) does not, as has sometimes been loosely said, simply give tribunals a discretion to award an uplift of up to 50 per cent (subject only to the 'exceptional circumstances' provision in sub section 4). As Lady Smith pointed out in her judgment in Aptuit (Edinburgh) Ltd v Kennedy (UKEATS/0057/06), the section has a very specific structure. An uplift of 10 per cent is mandatory. The Tribunal then has a discretion to award more than 10 per cent, up to a maximum of 50 per cent, if it considers it just and equitable to do so in all the circumstances. It may be debatable whether there is a logical difference between a duty so formulated and a duty to award an uplift in the range 10 to 50 per cent; but it seems to us that there may be at least a difference of emphasis, and it is in any event always safer to follow the precise statutory formula. (2) It follows, as Lady Smith pointed out in McKindless Group v McLaughlin [2008] IRLR 678 , that where a tribunal exercises its discretion to award an uplift of more than 10 per cent it must give reasons for doing so. It will equally, of course, have to give reasons for not doing so where, as will generally but not invariably be the case, the claimant has advanced an argument that it was just and equitable to award more than 10 per cent. (3) Although the phrase 'just and equitable in all the circumstances' connotes a broad discretion, the relevant circumstances must nevertheless be confined to those which are related in some way to the failure to comply with the statutory procedures: see Aptuit at [47]. (4) The circumstances which will be relevant will inevitably vary from case to case and cannot be itemised, but they will certainly include: (a) whether the procedures were ignored altogether or applied to some extent (see Virgin Media Ltd v (1) Seddington and (2) Eland (UKEAT/0539/08) at [20]); (b) whether the failure to comply with the procedures was deliberate or inadvertent; and (c) whether there are circumstances which may mitigate the blameworthiness of the failure. Those factors are sometimes embraced under the labels of the 'culpability' or 'seriousness' of the failure. (5) Provided a tribunal has directed itself appropriately, this Tribunal will be very slow to interfere with its exercise of discretion: Cex Ltd v Lewis (UKEAT/0013/07)."
[42]We propose to dispose first of a minor but very refined criticism of this award. The award to which the uplift of 50% applied was the whole of the compensation which the Tribunal awarded Mr Wardle for the period following his dismissal. That award was based on what he would have earned in the post which he had applied for. The criticism of the Tribunal is that it applied the uplift to an award based on the salary which he would have been receiving if he had been promoted to the post for which he had applied, rather than to an award based on the salary he was receiving in his old post. Since the uplift was to reflect the bank's non-completion of the steps required by the standard dismissal and disciplinary procedure, and since the non-completion of those steps related to his dismissal on 31 July 2008 and not to the failure to promote him on 30 January 2008, it was wrong, so the argument goes, for the Tribunal to have applied the uplift to losses which flowed from the latter and not the former. We do not know whether the Tribunal was addressed on which part of Mr Wardle's losses the uplift should apply to.[43]We note that section 31(3) does not identify the part of the award to which the uplift may be applied. It merely refers to "any award". But the bank's argument ignores the real and substantial link between the discriminatory refusal to promote Mr Wardle to the post for which he had applied and his discriminatory dismissal which had taken place precisely because he had complained to an employment tribunal about the discriminatory refusal to promote him. In these circumstances (and assuming that the Tribunal was asked by the bank to apply the uplift only to Mr Wardle's losses which flowed from his dismissal rather than from the failure to promote him to the post he had applied for), it cannot be said that it was not reasonably open to the Tribunal to conclude that it was just and equitable to apply the uplift to the whole of the award, i.e. including that part of the award which compensated Mr Wardle for not getting the job for which he had applied, and not to limit it to that part of the award which compensated Mr Wardle for the loss of the job he was doing at the time of his dismissal. If the Tribunal was not asked by the bank to apply the uplift only to the losses which flowed from Mr Wardle's dismissal, so that the issue is now for us to decide, we think that the link between the failure to promote him and his dismissal made it just and equitable to apply the uplift to the whole of Mr Wardle's award.[44]The two other grounds relate not to the part of the award to which the uplift was to apply, but to the percentage of the uplift. The first is that the maximum uplift of 50% should be reserved for the most serious cases of non-completion of the steps required by the statutory procedures, and it was not open to the Tribunal to decide that this was such a case. Although steps 1 and 2 had been ignored, there had been completion of step 3.[45]We do not agree. In Seddington , the Employment Appeal Tribunal (Underhill P again presiding) cautioned at [20] against too mechanistic an approach. In considering the extent to which the employer failed to complete the steps required by the statutory procedures, it is important for an employment tribunal to concentrate on the substance rather than the form. As we said at [4] above, step 3 was completed in name only. Mr Jeans reminded us of cases like Wilmot v Selvarajan [2008] ICR 1236 in which it was said that the question whether statutory procedures have been complied with is in effect a matter of considering simply whether the various steps were completed. It is therefore inappropriate, so Mr Jeans said, to ask whether the appeal hearing properly addressed the issues which Mr Wardle's dismissal raised or whether it complied with the statutory procedure in name only. That may be the appropriate approach when the tribunal is considering whether the failure to complete the steps required by the statutory procedures rendered an employee's dismissal automatically unfair, but we think that that argument carries far less weight where(a) a failure to complete any of the steps required by the statutory procedures triggers the obligation on the Tribunal to consider making an uplift to the award, and(b) whether to make an uplift, and if so how much of one, depends on the tribunal's perception of what is just and equitable in the circumstances. It follows that because this was a case in which steps 1 and 2 were not completed, and step 3 was completed in name only, and because the failure to comply with the statutory procedure was found by the Tribunal to be deliberate and without any justification, it cannot be said that it was not reasonably open to the Tribunal to conclude that this was a case which called for the maximum uplift, subject to the other ground to which we now turn.[46]That ground is that once the Tribunal had decided what the percentage uplift should be, it should then have considered what that amounted to in monetary terms. If the uplift was then found to be just too large, either when taken on its own or when comparing it to the rest of the award, the amount should have been reduced and the percentage adjusted accordingly. The criticism of the Tribunal is that it did not embark on that exercise at all.[47]Again, there is, we think, no answer to that criticism. This is therefore another topic which we should consider for ourselves. We bear two things in mind. First, when it comes to assessing damages for injury to feelings, tribunals were told by the Employment Appeal Tribunal in HM Prison Service v Johnson [1997] ICR 275 (Smith J (as she then was) presiding) at p. 282B "to keep an eye on the value of money in ordinary life and on the view which … members of the public would have of the amount of the award". The reason was – as Lord Bingham once said about the exorbitant level of damages in libel cases – that it was unhealthy for any legal process not to command the respect of lawyer and layman alike. In a memorable phrase, he said – in a libel action involving Elton John – that "it serves no public purpose to encourage plaintiffs to regard a successful libel action, risky though the process undoubtedly is, as a road to untaxed riches". There is no reason why what Smith J said about damages for injury to feelings should not apply to the level of the uplift under section 31(3) of the 2002 Act.[48]Secondly, in Chagger , Elias LJ noted at [102] that "the uplift operates as an incentive to encourage parties to make use of the statutory procedures". He did not think that "Parliament would have intended the sums awarded to be wholly disproportionate to the nature of the breach". That led him to conclude that the size of the award was capable of amounting to an "exceptional circumstance" justifying the reduction of what would otherwise have been an appropriate percentage uplift to below 10%.[49]Since the need to avoid double recovery was one of the reasons why we have set aside the award of aggravated damages, and since aggravated damages represent a particular aspect of injury to feelings, we acknowledge that the uplift must contain an element to compensate Mr Wardle to the extent that the injury to his feelings was aggravated by the bank's failure to comply with the statutory procedures. But even taking that into account, we think that an award approaching £90,000.00 – even for someone working in the banking sector with the pay and benefits which Mr Wardle enjoyed – was considerably disproportionate to the breach, and would be regarded by sensible members of the public as such. Leaving aside for the moment the fact that Mr Wardle's pension loss has to be recalculated, our calculations are that Mr Wardle's compensation would be in the region of £285,000.00 compared to the award which the Tribunal made of £179,898.44 before grossing up. In order to ensure that the uplift bears an appropriate relationship to his compensation, we think that the uplift should be reduced to 10% of his compensation before grossing up. Conclusion[50]For these reasons, Mr Wardle's appeal is allowed to the extent that(a) the discount of 80% which the Tribunal applied to Mr Wardle's loss of earnings is set aside, and(b) the Tribunal's calculation of Mr Wardle's pension loss as 10% of his basic salary with the bank is set aside. There should be substituted for the latter 12% of his basic salary to May 2015 and 14% of his basic salary from then to December 2024. The bank's appeal is allowed to the extent that (a) the discount of 70% which the Tribunal applied to Mr Wardle's loss of earnings for the years 2016 to 2024 inclusive is set aside, and substituted for it is a discount of 85% for the years 2016 to 2019 inclusive and a discount of 92.5% for the years 2020 to 2024 inclusive, (b) the award of aggravated damages of £5,000.00 is set aside, and(c) the 50% uplift of Mr Wardle's compensation under section 31(3) of the 2002 Act is set aside, and substituted for it is an uplift of 10% of his compensation.[51]We trust that we can leave it to the parties to calculate what the appropriate award should be. The award will have to be calculated, of course, on the basis of the correct number of years between the end of 2011 and the end of 2024. As a matter of form, we remit the case to the Employment Tribunal with the same constitution as before, if possible, to calculate the award in the light of this judgment in the unlikely event of the parties not being able to reach agreement on the figures themselves.