Appeal No.	 EAT/0042/00 & EAT/0573/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 & 2 November 2001 and 18 & 19 December 2001
Judgment delivered on 20 March 2002

Before
MR COMMISSIONER HOWELL QC
MR D CHADWICK
MR K EDMONDSON JP

LONDON FIRE & CIVIL DEFENCE AUTHORITY	APPELLANT

MR MAXWELL FASIPE	RESPONDENT

Transcript of Proceedings

JUDGMENT

RESERVED DECISION
Revised 17/04/2002

	APPEARANCES

For the Appellant	MR CHRISTOPHER JEANS QC
MR PETER WALLINGTON
and
MR PAUL STEWART
London Fire & Defence Authority
Main Building
Fire Brigade Headquarters
8 Albert Embankment
London
SE1 7SD	

For the Respondent	
MRS LAURA COX QC
and
MR MOHINDERPAL SETHI
Messrs Webster Dixon Solicitors
21 New Fetter Lane
London
EC4A 1AW

MR COMMISSIONER HOWELL QC

1.	These are two separate appeals by the London Fire & Civil Defence Authority (“the Authority”) in racial discrimination proceedings brought against them in the London South Employment Tribunal by Mr Maxwell Fasipe.  Mr Fasipe was never one of their employees, but was a temporary agency worker assigned to do clerical work and computer data entry in the statistics and management information (“SMI”) section of the Authority’s Operations Department from 8 December 1997 to 2 July 1998.  There is no doubt or dispute that in that capacity Mr Fasipe was entitled to the protection for contract workers under Section 7 Race Relations Act 1976, or that the Authority was the “principal” for this purpose against which proceedings could properly be brought for any discrimination contrary to that section.   Mr Fasipe’s complaints were made partly under that section, for alleged detriments suffered in the course of his work at the Authority, and partly under Section 4 for alleged direct discrimination by refusal or deliberate omission to offer him direct employment with the Authority itself.  

2.	The first appeal relates to the decision of the Tribunal on liability, given after five days of hearings spread over the period 22 April to 9 July 1999 with further consideration in July and September. That was contained in a sixteen page decision incorporating Extended Reasons sent to the parties on 24 November 1999.  In it the Tribunal held the Authority liable to Mr Fasipe for direct racial discrimination under four heads, two relating to not offering him direct employment and two related to the conduct towards him of employees in the SMI section, and one head of victimisation not alleged in the Originating Application or by Mr Fasipe himself, but added as an issue at the suggestion of the Chairman himself towards the end of the first day of hearing.  

3.	The Tribunal rejected Mr Fasipe’s further allegations of racial discrimination against the Authority under another six heads, and the decision also records that an additional allegation by him (that a road traffic accident in which he had been involved had amounted to racial discrimination against him by the Authority) had not been allowed to be added as an issue by the Tribunal, and was not in the event pursued.  There is no cross-appeal by Mr Fasipe against these aspects of the Tribunal’s decision.  

4.	The second appeal before us relates to the Tribunal’s later separate consideration of the remedy to be awarded to Mr Fasipe for the heads of discrimination and victimisation found proved.  Their second decision on remedy followed another four days of hearings in December 1999, December 2000 and January 2001, and consideration in Chambers on 19 March 2001, by the same Tribunal. This further seventeen page decision with Extended Reasons, sent to the parties on 22 March 2001, awarded Mr Fasipe a total of £206,260 compensation.  However it became apparent that there were arithmetical errors in this total and it was later substantially increased by a further decision on review sent to the parties on 22 May 2001 to a total award of £245,237.13.  That included sums of over £150,000 for past and future loss of earnings and pension rights and loss of opportunity, general damages in the separate sums of £25,000 for “injury to feelings” and £40,000 for “psychiatric damage, pain and suffering and loss of amenity”, with the addition of substantial interest in each case.  

5.	The Authority appeals against the decision on liability alleging numerous errors in relation to each of the heads of discrimination and victimisation found proved, and also against the awards of compensation, alleging material misdirections in attributing such losses to the limited number of acts of discrimination found proved, and in awarding unreasonably high amounts for general damages.

6.	To understand the issues argued before us on appeal by Mr Jeans QC for the Authority and Mrs Cox QC for Mr Fasipe, it is necessary to rehearse what led up to Mr Fasipe bringing his proceedings before the Tribunal, and the circumstances facing the Tribunal when he did.  A criticism we make later is that the Tribunal adopted an insufficiently analytical approach to the facts and evidence in the case, and it is noteworthy that their decision contains no chronological explanation of the facts or the history of the proceedings themselves.  The following summary is accordingly extracted from the substantial body of documents with which we were helpfully provided for the purposes of the appeal. These included contemporaneous documents and correspondence before the Tribunal, witness statements given in evidence at the hearings, affidavit evidence about what happened at the tribunal itself,  and experts’ reports about Mr Fasipe’s mental state, which as will be seen was unhappily itself a factor central to the issues both on liability and compensation.  References in brackets are to the page numbering in the combined bundle, running to well over five hundred pages in all.

7.	Mr Fasipe was born on 5 February 1970 and is black.  He has good educational qualifications including three ‘A’ levels and a Class 2(2) Degree in Maths and Computer Science.  

8.	Those were the circumstances in which Mr Fasipe’s Originating Application came on for hearing on 22 April 1999.  On that day Mr Fasipe appeared in person, duly accompanied as arranged, and the Authority appeared by counsel and their solicitor, with their witnesses.  Mr Fasipe had still not provided any witness statement, and there was of course considerable apprehension as to the course the proceedings would take.  However, the Authority did not then make any further application for the proceedings to be struck out or postponed; (although their counsel emphasised the difficulties they were under) nor did he or they make any objection to the unusual procedural directions the Tribunal then went on to give at the outset of the hearing, as recorded in paragraph 5 of their Extended Reasons.  These were that in the circumstances the Respondent’s evidence in answer to Mr Fasipe’s claims should be called first, subject to their having leave to recall any witness or adduce further evidence at any stage in the proceedings; and that the individual witnesses should remain outside the Tribunal room until they gave their evidence and should thereafter leave so that the possibility of confrontation was minimised.  

9.	The hearing then began and as recorded by the Tribunal, following this approach the concerns about physical confrontation did not materialise, and in fact the proceedings went on calmly and courteously.  Again however the fact that Mr Fasipe had been and still was compulsorily detained under Section 2 of the Mental Health Act was not mentioned or disclosed by the Tribunal to the Authority.  

10.	As noted above the Originating Application had never been amended, though it had been supplemented by a number of somewhat diffuse and unorthodox documents, and the Directions earlier given had not been complied with as there was still no witness statement setting out in a clear way the factual case Mr Fasipe was seeking to make.  Entirely rightly therefore, the Chairman made an effort during the course of the first day of the hearing to clarify with the parties the issues they were required to address, and the Tribunal to determine.  

11.	Paragraph 9 of the Extended Reasons records the result of this, that on the first day of the hearing the parties agreed that the issues were those there identified, in ten numbered sub-paragraphs by reference to various instances of alleged discrimination gleaned from the material previously put forward by Mr Fasipe, with one material addition.  This was that in paragraph 9(iii), in addition to the question whether the failure to shortlist Mr Fasipe for the MG12 pooled recruitment vacancy in August 1998 had been direct racial discrimination against him contrary to Section 1(1)(a) and 4 of the Act as he had alleged, the further question was introduced whether this had amounted to discrimination against him by way of victimisation contrary to Section 2.  There is no dispute that this was done at the instigation of the Chairman, who had suggested it towards the end of the first day.  Again no objection was made by the Authority’s counsel to this issue being included in the list of matters to be considered (though it was of course disputed that there was any merit in such a claim: pages 155 – 156).  

12.	There appears to have been no overt consideration at that stage as to whether the Tribunal had jurisdiction to include this as a fresh head of complaint in the proceedings so long after the actual event, when it had not been the subject of complaint within the normal prescribed time.  The Chairman’s later comments at page 285 suggest an objection made on jurisdictional grounds at that point would have received short shrift, but in any case paragraph 12 of the Extended Reasons shows that the Tribunal in fact deferred all consideration of time limit issues until the end of the hearing, after it had heard the factual evidence. 

13.	During the ensuing days of the hearing, the Authority’s witnesses gave their evidence and were cross-examined by Mr Fasipe.  He eventually produced a witness statement in early June (pages 364 – 370) after most if not all of the Authority’s evidence had been taken, and gave oral evidence on one of the later days of the hearing.  In addition, he submitted further written contentions and factual allegations in a 35-page document headed “Summing Up” also dated June 1999.  That document referred specifically to the fact that he had been “sectioned” under Section 2 of the Mental Health Act, and further documentary evidence of this and his medical condition were contained in the medical reports dated 2 July and 8 July 1999 (pages 171-2, 363-363A).  These according to the Chairman’s comments dated  9 May 2001 (page 294) were produced at or towards the end of counsel’s cross-examination of Mr Fasipe when an application was made to ask Mr Fasipe questions about his health, and there can thus be no doubt that the Authority was made aware of the details of his medical problems, including the fact of his having been compulsorily detained from 16 to 23 April 1999, before the evidence in the case was concluded.  

14.	As noted above the Tribunal’s eventual decision, sent to the parties on 24 November 1999, upheld Mr Fasipe’s complaints of direct discrimination on four out of the ten grounds in issue plus the additional one of victimisation but rejected the remaining six on the facts.  As is made apparent throughout the Extended Reasons, despite thus rejecting the majority of Mr Fasipe’s assertions about the incidents he considered to have been discriminatory against him, the Tribunal took an adverse view in general of the Authority, and several of its witnesses.  They described Mr Fasipe as having been:

“Subjected to a regime of discrimination.”

though without identifying more specifically in relation to that finding the components of this regime, or the individuals involved in or responsible for it.

15.	In relation to the offer of temporary direct appointment to Mr Stojovic but not to Mr Fasipe in June 1998, they said they found Mr Clarke and Mr Jeffries to have been evasive witnesses who failed to comply with instructions from Mr Sheers to offer such employment to Mr Fasipe, and subsequently attempted to mislead the Tribunal as well as him; a charge which they repeated against “the Respondents”, though again without identifying specifically the respects in which they found this to have been done.  On that basis they held there was direct discrimination.

16.	The rejection of Mr Fasipe for the MG12 vacancy under the pooled recruitment system in August 1998 they held to be both a further act of direct discrimination and also victimisation.  This conclusion was based in particular on the Tribunal’s own view that they were not satisfied with the scores awarded on the short-listing assessment.  They rejected the evidence of Mr Shirley that this had been simply the result of the system used (and of Mr Fasipe’s undisputed failure to comply with the requirement that all aspects of the stated selection criteria had to be expressly addressed in the application) as “not credible or of assistance”.  A further major ground for their conclusion against the Authority on this complaint was the adverse inference of impropriety if not dishonesty they drew against the Authority or those conducting the case on its behalf from the fact that the two managers from other departments who had carried out the actual short-listing had not been called as witnesses at the hearing.  On this the Tribunal said:

“We conclude that the Respondents  had good reason for not wishing to expose those individuals to questioning ”

17.	They held in addition that following the making by Mr Fasipe of allegations of racially discriminatory treatment at the meeting on 2 July, the failure to short-list him for the MG12 position had amounted to victimisation as well as direct discrimination, and concluded with the comment:

“The Applicant has suffered substantial hurt feelings which have been aggravated by the insulting manner in which the acts of discrimination, and victimisation were carried out, and the subsequent attempts by the Respondent to cover their tracks.”

Again however the Extended Reasons do not spell out specifically what was meant here by the “attempts” referred to.

18.	The Tribunal also found proved (apparently in their entirety) Mr Fasipe’s allegations about the security card having been handed to him in a discriminatory manner since 19 December 1997. They gave as their reason that:
“We do not find that the Applicant was imagining the incident [sic] .  There was no evidence that at the material time he was suffering from any mental condition.  In fact he was doing complicated programming work which would have been difficult to do had he been mentally ill at the time.”

19.	Finally they also found proved the allegation of a violent assault by Mr McGlennan by banging the back of Mr Fasipe’s chair, saying that they did not find Mr McGlennan, who had admitted that he might have knocked the back of Mr Fasipe’s headrest accidentally when helping Mr Fasipe with his computer, a “credible witness” on this point despite accepting his evidence on others.

20.	Following their decision on liability it took, as noted above, very nearly a further eighteen months for the Tribunal’s final decision on compensation to be reached and the correct amounts assessed.  The Tribunal’s main statement of reasons sent to the parties on 22 March 2001 after the further hearings on remedy records that the award of very substantial compensation by reference to Mr Fasipe’s admitted complete mental breakdown and inability to work over a prolonged period depended principally on the expert evidence of Dr Isaac, a consultant psychiatrist who had been nominated by agreement as the single joint expert to assist the Tribunal and the parties on the causes and prognosis for Mr Fasipe’s condition.  On this there were substantial supplemental questions, both in writing and as we were informed in what amounted to cross-examination at the instance of the Authority, when it became apparent that Dr Isaac was attributing the whole of Mr Fasipe’s breakdown and mental condition to the particular items of discrimination found by the Tribunal at the liability hearing, and was doing so on the basis of what he had been told by Mr Fasipe himself.  

21.	The Authority commissioned a separate expert report of their own from another psychiatrist, Dr Baggaley. He took a different view from Dr Isaac’s diagnosis (which was of a major depressive episode coupled with chronic adjustment disorder, and features resembling the effects of post traumatic stress disorder), and preferred his own diagnosis of a paranoid psychotic disorder.  However that had to remain tentative, as he had not been permitted to interview Mr Fasipe himself.  

22.	As recorded by the Tribunal in paragraph 9 of the Extended Reasons for their second decision on the remedy issues sent to the parties on 22 March 2001, both experts were however in agreement that whichever diagnosis was settled on, Mr Fasipe’s experiences at work could not be discounted as factors either causing or contributing to his breakdown.  Further, each accepted that the other’s diagnosis could possibly be correct.  In those circumstances the Tribunal recorded that they preferred to base themselves on Dr Isaac’s diagnosis, since he had been the original independent expert nominated and had had the opportunity of examining Mr Fasipe while Dr Baggaley had not.  Most importantly, on the causation issue, assuming Dr Isaac’s diagnosis to be correct, the view of both experts was similar.  In accordance with those views the Tribunal therefore concluded that the discrimination found by the Tribunal had been the cause of Mr Fasipe’s psychiatric condition, or at least a significant contributor to it.  

23.	Dealing with the issue of general damages the Tribunal reminded themselves of the need to avoid any element of double recovery in what they awarded for psychiatric damage and injury to feelings.  They assessed the latter at £25,000 saying that they were following the guidance of the EAT set out by His Honour Judge Clark in Tchoula v ICTS (UK) Ltd [2000] IRLR 643.  As to the separate element of psychiatric damage they referred to the Judicial Studies Board guidelines for damages for personal injury, and while noting that counsel who by then had been instructed and appeared for Mr Fasipe on the remedies hearing had initially contended for an award of £25,000 to £27,500 as appropriate, concluded that the appropriate sum to award for severe psychiatric damage was the significantly higher amount of £40,000: (paragraphs 17 –22 of the Extended Reasons).  As noted above, the actual figures were later reworked and resulted in the increased total award of £245,237.13, the amounts for injury to feelings and psychiatric damage remaining unchanged at  £65,000 in all.

24.	Against those two decisions the Authority appealed on grounds set out in two substantial Notices of Appeal, the first against the liability decision dated 23 December 1999 running to twenty six pages, and the second dated 1 May 2001 against the separate decision on compensation.  Taking account of some refinement in the skeleton arguments and oral submissions of counsel for the Authority as the two appeals before us progressed, its contentions can for present purposes be grouped as follows.  

25.	First, the procedure adopted by the Tribunal at the hearing on 22 April 1999 and subsequently was defective, and involved one or more breaches of natural justice against the Authority.  Under this head three submissions were pursued.  First the Tribunal had been wrong to proceed with the hearing on liability without disclosing expressly at the outset that Mr Fasipe was subject to a Section 2 Mental Health Detention Order.  That it was said had the effect of depriving the Authority of considering whether to renew its application for an adjournment on that ground, and of making submissions on the weight to be attached to any evidence or assertions that might be given by Mr Fasipe before the Tribunal if the proceedings were to go ahead.  Then there was the introduction of the question of victimisation, entirely on the Chairman’s own instigation, when there had never been an amendment of the proceedings to introduce such a complaint and Mr Fasipe himself had never set out a factual case for it.  Finally reliance was placed on an occasion in the course of the proceedings when Mr Kyriakides had been giving his evidence and had expressed the view that having known one of the alleged discriminators, Mr Jeffries, for a long time he did not consider him a racist. At this, a member of the Tribunal, Mr Gibbes, had intervened and engaged Mr Kyriakides in a fairly robustly expressed debate on how one could know this about another person, concluding his observations with the words “I rest my case”.  That was said to demonstrate an appearance of bias against the Authority.  

26.	The second group of arguments on liability related to the way the Tribunal dealt with the four heads of direct discrimination and one of victimisation they found proved: for various detailed reasons it was contended on behalf of the Authority that their conclusions on these were flawed, because of failure to have regard to Mr Fasipe’s mental state in assessing his evidence, misdirection as to the factual case that needed to be established for example in relation to victimisation or the incident involving the chair, and perversity in the actual findings made on the failure to short-list Mr Fasipe for the MG12 position and otherwise, which it was said were unjustified having regard to the actual evidence before the Tribunal and the way the case was presented to them.  

27.	Thirdly as to the decision on remedies, it was contended that the Tribunal had misdirected themselves and reached a perverse conclusion in preferring Dr Isaac’s opinion on diagnosis and causation over that of Dr Baggaley, and that the two general figures of £40,000 and £25,000 for psychiatric illness and injury to feelings were perverse and excessive.  

28.	On behalf of Mr Fasipe, it was disputed that there could have been any error in law on the part of the Tribunal in the procedure adopted when the Authority appearing by counsel had in fact agreed to it.  If Section 2 of the Mental Health Act had not been mentioned by name at the outset of the proceedings, that was immaterial, since the Authority plainly knew that Mr Fasipe was under psychiatric hospital care but had not pressed for any adjournment.  The making of one arguably inappropriate remark by the Tribunal member (which was all finally relied on as showing “bias”) could not have been said to have given rise to any real appearance of bias in its actual context, which had included an intervention by the Chairman and an apology by the member himself for the remark. The introduction of victimisation as an issue had been done clearly, on the first day of the hearing when the issues in the case were being quite correctly defined, and without objection.

29.	As to the second group of complaints it was contended that the Tribunal had correctly directed themselves as to the legal principles they should be applying, had recorded findings of primary fact which justified them as a reasonable Tribunal in reaching the conclusions they had, albeit adverse to the Authority. Consequently all the Tribunal’s conclusions under these heads fell within the established principle that it is for the Employment Tribunal which hears the evidence to determine the factual issues, and that on such matters of fact and degree it is not for the Appeal Tribunal to intervene and substitute its own view, or (especially in such a complicated case) pick over particular points on the facts.  

30.	As to the amounts awarded for compensation the Tribunal had expert evidence before them to justify their conclusions on the diagnosis and causation issues, and their reasons for preferring the evidence of Dr Isaac were clearly stated: that part of the decision could not be characterised as perverse.  The awards for injury to feelings and psychiatric damage were open to the Employment Tribunal to make: the Appeal Tribunal could again only interfere if there had been some misdirection  and here there was none.

31.	 On the procedural issues we have concluded that Mrs Cox’s arguments are to be preferred and there was no error of law on the part of the Tribunal such as to invalidate their decision.  The circumstances facing all involved on the morning of 22 April 1999 were of course of the most acute difficulty.  Mr Fasipe himself was in distress, on heavy medication and under continuing detention because of an ongoing psychological crisis obviously having a great deal to do with the Tribunal proceedings themselves.  The Authority was faced with conducting proceedings against an Applicant in person in this state, who had recently been making bizarre and diffuse suggestions including references to violence and blood, and the Authority itself as “demonic” and “satanic”; had failed to specify the factual evidence he would be putting forward defining the case they had to meet, and had repeatedly failed to comply with the Tribunal’s directions and the requirements of normal procedure. The Tribunal were faced with a mentally disordered applicant in a volatile and unpredictable state, but the need to provide a means somehow of getting any genuine grounds of dispute between the parties heard and determined in as fair and normal a manner as possible, without undue delay or confrontation in the interests of bringing matters to a resolution in the interests of both of them, and avoiding undue disruption to the Tribunal’s own business.  

32.	The decision that the best way of trying to do this in the circumstances was to start the proceedings but with the normal order of events reversed, having clarified and defined so far as possible the issues that would need to be addressed, was plainly a reasonable one within the proper discretion of the Tribunal, and the original suggestion that these had amounted to errors was rightly not proceeded with.  On the points that were pursued, we have not been persuaded there was any material error in the Tribunal not having disclosed Mr Fasipe’s up to date medical condition more explicitly than they did.  The two material questions were whether it was safe to go ahead with the proceedings without disruption, and the weight to be accorded to any evidence Mr Fasipe might give.  While it might have been preferable for the Tribunal to have disclosed, at least to counsel, the exact terms of the advice received from the Doctors at the Gordon Hospital rather than just what was quoted in the letter of 20 April 1999 at page 361, it is the fact that the Authority did have, in the material it had already received and the information that Mr Fasipe was currently in a mental hospital under psychiatric care, and being let out to attend the Tribunal hearing under hospital supervision, all that in our view was reasonably needed to enable them to decide on an application for postponement or to make submissions about the weight of evidence.  In fact, at the outset of the proceedings they also had the e-mail sent on Mr Fasipe’s behalf on 18 April 1999 referring to his incarceration and compulsory detention in a mental ward.  And in any event, well before the time came for making submissions on the weight to be attached to the actual evidence given by Mr Fasipe, they had the explicit details of his medical treatment and condition, including the express references to compulsory detention under Section 2, in the medical reports produced at the hearing on 9 July 1999, and in what was said by Mr Fasipe himself in the “summing up” document of June 1999.  

33.	On the inclusion of the victimisation issue, we think there would have been good ground for the Authority objecting on the first day of hearing to its introduction without a preliminary determination of whether it was possible or proper at all for this to be introduced as a fresh complaint at that late stage.  However we do not think that in the absence of any such objection it was a breach of natural justice for that to be included in the way it was in the list of points identified as needing to be dealt with in the course of the hearing.  In view of what the Tribunal said in paragraph 12 of their Extended Reasons under the heading “Time Limits” it is in our view plain that by so including the possibility of a victimisation claim under Section 2 in the list of issues defined in paragraph 9 the Tribunal were not precluding any argument by the Authority that it would be outside their jurisdiction (on time grounds or otherwise) to allow such a claim, any more than argument on the merits of such a claim and whether the facts to establish it had been made out.  It was a reasonable course to leave all that to be dealt with later, when it could be seen how the evidence and the presentation of the Applicant’s case developed.  In the difficult circumstances facing the Tribunal at the outset of the hearing, that was a reasonable course to take.  

34.	Finally the one remark of the Tribunal member, Mr Gibbes, about “resting his case” at the conclusion of the exchange with the witness Mr Kyriakides was not in our judgment such as to invalidate the whole proceedings by conveying to a reasonable observer that the Tribunal’s mind was closed against the Authority.  We share the Chairman’s view in his comments on this incident (see page 285 – 288) that this kind of language, apparently derived from American TV court room dramas, is inappropriate for a person sitting in a judicial capacity in sensitive Employment Tribunal proceedings to use. However we are satisfied it was dealt with entirely appropriately when the Chairman immediately intervened to rebuke Mr Gibbes and correct any misleading impression, and Mr Gibbes immediately apologised.  In the light of that we were not satisfied that any real apprehension of bias would thereafter have been left in the mind of any objective observer, and in support of that again we agree with the Chairman that it is significant that no objection was raised on behalf of the Authority to the case continuing at the time.  We accordingly reject the procedural grounds of appeal advanced on behalf of the Authority.

35.	However the informal and to some extent unorthodox procedure the Tribunal quite understandably adopted to get through the hearing inevitably carried its own consequences in a case of this complication, for the way the Tribunal needed to address the substantive issues.  In particular, the fact that a number of the allegations depended on uncorroborated assertions by Mr Fasipe himself, coupled with the fact that he was not, in the event, required to set out the details of his case clearly in the form of a normal witness statement until after the conclusion of the Authority’s evidence, made it of even more than usual importance that the Tribunal should adopt a strict and analytical, not a generalised, approach to the evidence.  It further meant that they needed to be particularly cautious about accepting the potentially distorted perceptions of a mentally disordered Applicant without corroboration or thorough scrutiny.  

36.	Both sides emphasised that the Tribunal’s findings and stated reasoning required to be read as a whole, and that it would be wrong for us to take a piecemeal approach to the findings on individual heads in isolation from others.  We accept that.  Applying that approach however also leads us to accept a major submission made by Mr Jeans, that the Tribunal’s perceptions of Mr Fasipe’s evidence about the treatment he received, and the corresponding adverse assumptions they plainly made about several of the Authority’s witnesses and the probity of their evidence to the Tribunal, can fairly be seen to have fed into one another so as to have affected all the conclusions on discrimination and victimisation they reached against the Authority.  

37.	In particular, we accept Mr Jeans’ submission that the Tribunal’s approach to the evidence before them on these issues can be seen to have been flawed by a fundamental misdirection on the facts about when Mr Fasipe first became mentally ill.  That was a question of major importance both in its timing in relation to the acts complained of and also at least equally importantly in relation to the time when he first raised allegations about them.  The misdirection can be plainly seen from paragraphs 4 and 11(v) of the Tribunal’s Extended Reasons where they stated:

“However it is a fact that the Applicant became mentally ill after his employment ended …. We do not find that the Applicant was imagining the incident.  There was no evidence that at the material time he was suffering from any mental condition.”

Its significance was reinforced in the Chairman’s comments of 30 May 2000 (at page 288) where he said:

“The Tribunal’s finding as to the Applicant’s mental state refers to the absence of medical evidence that the Applicant was mentally ill during the course of his employment…. The absence of any medical report on his condition during employment led the Tribunal to conclude that he became mentally ill after leaving employment.”

38.	In fact, as will be recalled from the summary of facts and evidence given above, that was materially incorrect.  The medical evidence at pages 171 – 172 and 363 – 363A, coupled with the various statements and documents from Mr Fasipe himself, showed clearly that he had been suffering from some form of mental disturbance leading to a suicide attempt as early as April 1998.  Moreover by the second half of June 1998 when the main incidents of discrimination relied on are alleged to have taken place, and certainly by the start of July when allegations of racial discrimination for the first time started to be made, Mr Fasipe was suffering quite serious mental disorder and afflicted by what his own GP referred to as paranoid ideas.  That paranoid ideas and “fixed thinking” were a feature of his particular disorder was beyond dispute, whether the true diagnosis of what gave rise to them was a depressive illness with complications, or a full blown psychotic condition, something on which as the later evidence showed, medical opinions might legitimately differ. That Mr Fasipe’s condition remained serious, and involved irrational behaviour and distorted perceptions of how other people were thinking and acting towards him throughout the ensuing period when his detailed complaints were actually first formulated and expressed, is self evident from the material he himself produced as well as from the medical evidence before the Tribunal at the liability hearing: yet we do not find it addressed as a factor in evaluating his evidence.   

39.	In addition, the Tribunal’s approach was in our judgment flawed by their acceptance of Mr Fasipe’s uncorroborated evidence, and their rejection of that of the Authority’s witnesses as untruthful in a generalised rather than an analytical way: for example in the references in paragraph 11(ii), 11(iii) and 12(a) of the Extended Reasons to:

“The Respondent’s subsequent attempts to mislead the Tribunal and the Applicant ….  The subsequent attempts by the Respondents to cover their tracks …  Mr Fasipe was subjected to a regime of discrimination.”

without making it clear what evidence and facts these serious findings or adverse assumptions were based on.

40.	We have not been satisfied that the Tribunal’s conclusions on the four separate heads of discrimination and one of victimisation they found proved against the Authority can be divorced from the generalised assumptions against the Respondents embodied in these references.  For example, their apparent rejection in paragraph 11(ii) of what was on the face of it a clear and reasonable explanation in the Authority’s evidence in chief for why no actual offer of temporary direct employment at grade MG12 had been made to Mr Fasipe at the end of June 1998, (because he had not asked for it and they did not understand him to be interested in giving the assurance required), appears to have been directly related to these assumptions.  So does the rejection in paragraph 11(iii) of the evidence of Mr Shirley about the express requirements of the short-listing process (supported by documentary evidence) as not “credible”.

41.	In addition, we accept as justified certain specific contentions of the Authority about the Tribunal’s findings under the various heads as follows.

42.	Assuming the issue of victimisation to have been properly within the Tribunal’s jurisdiction at all, the actual finding made in paragraph 11(3) of the Tribunal’s Extended Reasons was not in our view one open to them on the facts there recorded as found.  For a finding of discrimination by way of victimisation contrary to Section 2 Race Relations Act 1976 it is necessary first to identify the protected act relied on and then demonstrate factually that it has been the doing of that protected act that actually caused the conduct complained of.  Without evidence and clear findings to demonstrate the causal link or chain between knowledge of Mr Fasipe’s generalised allegations of race discrimination first made at the meeting on 2 July 1998 and the short-listing process carried out by two different managers in accordance with the system explained in the evidence of Mr Shirley, no proper conclusion of victimisation contrary to Section 2 could be drawn.  The Tribunal’s conclusion is defective because the factual findings to support it are not identified or stated.  

43.	Further, the process by which the Tribunal arrived at their conclusion on victimisation, and their separate conclusion that the failure to short-list Mr Fasipe for an MG12 post under the pooled recruitment system amounted to direct racial discrimination against him, were based largely if not entirely on adverse inferences they drew against the Authority from the fact that the two short-listers themselves were not called to give evidence in support of that given by Mr Shirley, and the suspicions embodied in their express conclusion that:

“The Respondents had good reason for not wishing to expose those individuals to questioning.”

Those inferences and their consequent complete rejection of Mr Shirley’s evidence were in our judgment unjustified in view of what was said in the evidence of counsel (Mr Heath) who appeared for the Authority at the liability hearing, in paragraph 19 of his affidavit of 24 January 2000 at page 160 that:

“During the hearing, rightly or wrongly, I took the view that Mr Fasipe’s failure to address the two selection criteria was fatal to his complaint of discrimination and of victimisation on this point.  I informed the Tribunal of this view.  I further indicated that in the circumstances, I did not propose to call the two assessors, as it was not necessary to do so, and that to do so would needlessly increase costs.”

That evidence is noted and referred to, but not controverted, by the Chairman in his comments dated 13 May 2000 at page 287.  On such a matter the sworn and unchallenged evidence of Counsel is of course to be accepted.  In view of it we have to conclude that the Tribunal acted unreasonably in drawing the adverse conclusions they did and attributing a want of probity to the Authority in not calling the two assessors as witnesses, when the actual reasons for their not being called were different and had been explicitly stated to the Tribunal by counsel in the course of the hearing.

44.	In any event the Tribunal’s decision to proceed to a determination on victimisation involved one or more material misdirections: this being a jurisdictional issue, it is not sufficient simply that the Respondents did not object.  Insofar as the Tribunal based themselves on an assumption or direction by the Chairman that the mention of “discrimination” in the Originating Application also let in any claim of victimisation (cf. his comments at page 285 referring to Quarcopone v Sock Shop Holdings [1995] IRLR 353) that was incorrect: Housing Corporation v Bryant [1999] ICR 123.  To the extent that victimisation was intended to be included in the (unspecified) additional claims the Tribunal said in paragraph 12(b) of the Extended Reasons they found it just and equitable to admit out of time, they wrongly focused on the date of the Originating Application instead of when such a claim in an identifiable form was first sought to be introduced into the proceedings.

45.	In addition to the Tribunal’s failure to address the relevant question of Mr Fasipe’s mental condition at the time his allegations about entry cards and the chair incident were first made, we accept the Authority’s contention that there were further flaws in the way these issues were dealt with in their stated reasons.  In particular, it was unreasonable of the Tribunal to have concluded that both Mr Clarke and Mr McGlennan had handed (or “tossed”) cards to Mr Fasipe in a racially discriminatory manner (in what their reasons incorrectly refer to as a single, though unidentified, incident) when there was no clear finding that they had behaved in a different way to any other employee and nothing in the nature of the acts alleged that made them inherently racist. Moreover there was no evidence of Mr McGlennan having “tossed” a card at all, and Mr Fasipe’s original allegations against Mr Clarke about the manner the cards had been handled by him had been different.  

46.	On the allegation of a violent physical assault by Mr McGlennan, repeated several times, we accept that it was unreasonable for the Tribunal to have rejected Mr McGlennan’s evidence in chief in his written statement as untruthful, when as is clear from the Chairman’s own note of the evidence dated 9 May 2001 Mr McGlennan’s evidence was never challenged on this in cross-examination at all: (see page 293).  In addition the Tribunal’s decision on this issue in paragraph 11(ix) – incorrectly numbered (xi) – of their Extended Reasons fails to identify any proper basis for the inference that the conduct alleged, even if found proved, had been on racial grounds.  

47.	For those reasons we have concluded that the Tribunal’s decision against the Authority on the four heads of direct discrimination and one of victimisation they found proved has to be set aside in its entirety.  It is not necessary for us to deal further in this already long judgment with the additional arguments advanced on behalf of the Authority in their Notice of Appeal and subsequent submissions in relation to the decision on liability.  

48.	We accordingly allow the Authority’s appeal against the parts of that decision that went against it, and the consequence of that has to be, as Mr Jeans conceded, that we remit those issues for rehearing and redetermination at the Employment Tribunal, which in the circumstances should be a differently constituted Tribunal from the one which gave the decisions under appeal.  

49.	For the avoidance of doubt the issues we are remitting for reconsideration consist only of those raised by the allegations already made by Mr Fasipe that: 

(1)  there was direct discrimination against him on racial grounds on about 16 July 1998 or thereafter in that the Authority refused or deliberately omitted to offer him temporary direct employment at the MG12 grade on similar terms to that offered to Mr Stojovic;

(2)  there was direct discrimination against him on racial grounds for which the Authority was responsible, in the way Mr Fasipe was handed entry cards, on a daily basis by Mr Clarke from December 1997 and on one occasion by Mr McGlennan;

(3)  there was direct discrimination against him for which the Authority was responsible in that Mr McGlennan committed a violent assault on Mr Fasipe on about 30 June 1998 in the presence of Mr Clarke, by repeatedly banging the back of his chair so that his head jolted about frenziedly with every blow (see page 103);

(4)  there was direct discrimination against him by the Authority by refusing or deliberately omitting to offer him employment or otherwise treating him detrimentally in relation to his application for the MG12 post under the pooled recruitment system between 
30 June and 11 August 1998 in that his application was rejected without short-listing; 

together with the additional questions of

(5)  whether the facts alleged down to and including the first day of the earlier Tribunal’s hearing on 22 April 1999 amount to an allegation properly within the jurisdiction of the Tribunal (or properly so to be admitted) that in failing so to short-list him the Authority victimised Mr Fasipe contrary to Section 2 of the Act by reason of the complaints of racial discrimination he had first made at the meeting on 2 July 1998; and if so (but only if so) 

(6)  whether the facts establish to the satisfaction of the Tribunal that the Authority did so victimise Mr Fasipe.  

50.	It will be a matter for the fresh Tribunal to determine the procedure it adopts for the rehearing: for example whether to deal with and determine issue (5) as a preliminary one in advance of the others, and/or whether to require Mr Fasipe to provide in advance of any hearing a clear statement of the factual allegations he now relies on, and/or a fresh witness statement so as to set out the whole of his factual evidence, focused on and limited to the issues for the rehearing.

51.	Our decision on the liability appeal means necessarily that the earlier Tribunal’s subsequent decisions on the compensation and remedy issues are set aside as well, and all such issues are remitted to the fresh Tribunal for determination so far as needed in the light of their decisions on liability.  However as the issues on the second appeal were argued before us fully, we will express our conclusions on them briefly.  

52.	Despite the arguments addressed to us, and the detailed references made to the terms of the expert psychiatric evidence and other material at pages 387 – 501 of the appeal documents, on behalf of the Authority against the Tribunal’s decision on the causation issues, we were not persuaded that there was any error of law or in principle in the Tribunal having accepted the evidence of the joint expert psychiatrist on the diagnosis and causation questions, and in having based their conclusions on that.  To a lay person it may appear puzzling that the total breakdown which it is accepted Mr Fasipe suffered or was suffering, by the time his employment came to an end if not before, could all be attributed to the particular instances of discrimination found by the Tribunal, rather than to other causes or different incidents.  However as Mrs Cox pointed out that was the effect of the expert evidence before the Tribunal, and they were entitled to rely on it.  

53.	Similarly it cannot be an error of law for the Tribunal to have based their conclusions on the diagnostic evidence of the joint expert who had actually seen the patient, rather than the differential diagnosis suggested by the other expert who had not.  As recorded by the Tribunal in paragraph 8(c) of their Extended Reasons of 22 March 2001, each expert in fact agreed that the other’s diagnosis was a tenable one; and in any case the precise nature of the professional diagnostic category Mr Fasipe should be placed in was secondary to the causes and consequences of his admitted disorder, on which as recorded by the Tribunal in paragraph 9 of the Extended Reasons both experts were in agreement that the Applicant’s experiences at work were properly to be taken into account as factors either causing or contributing to his breakdown.  

54.	As regards the sums awarded for general damages for injury to feelings and psychiatric damage, we have however been persuaded by the arguments on behalf of the Authority that the figures arrived at by the Tribunal were excessive, both when in seen in isolation from one another and when viewed together.  We accept the submissions made to us that the sums awarded fell outside the permissible bracket for comparable injuries as identified in the judgment of the Appeal Tribunal given by His Honour Judge Clark in Tchoula v ICTS (UK) Ltd [2000] IRLR 643 at 648, and in relation to the Judicial Studies Board guidelines for psychiatric injury to which we were referred.  Consequently we would have concluded had it been necessary to do so, that the Tribunal’s decision on these two amounts had to be set aside as excessive and unreasonable, independently of our decision on liability: cf. Prison Service v Johnson [1997] ICR 275, 281.  

55.	The Authority’s appeals are thus allowed in the ways we have indicated.  At the conclusion of the four days of argument these appeals occupied before us, each side made a putative application for leave to appeal to the Court of Appeal on any issue on which our decision should be against them.  Having reached the conclusions expressed above, we are of the view that our decision on the liability appeal involves merely the application of well established principles of law to the particular facts and circumstances of this admittedly difficult case, and in view of our remission of both liability and compensation issues to a fresh Tribunal no separate issue of law arises on the remedies decision to warrant the attention of the Court of Appeal.  Accordingly we do not grant leave to appeal.