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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Westminster Victim Support Scheme v Keyani [2003] UKEAT 329_02_2005 (20 May 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/329_02_2005.html Cite as: [2003] UKEAT 329_02_2005, [2003] UKEAT 329_2_2005

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APPEARANCES

 

For the Appellant	MR PETER WARD (of Counsel) Instructed By: Messrs Levenes Solicitors Ashley House 235-239 High Road Wood Green London N22 8HF
For the Respondent	MS CATHERINE RAYNER (of Counsel) Instructed By: Lambeth Law Centre Race Discrimination Unit 14 Bowden Street Kennington London SE11 4DS


 


THE HONOURABLE MR JUSTICE RIMER:

A. The first appeal

1. Three appeals are before us, all by Westminster Victim Support Scheme ("the Scheme"). The first is against a decision of an employment tribunal sitting at Ashford, Kent over three days in January 2002 and chaired by Miss V.G.Wallis. The tribunal's extended reasons were sent to the parties on 21 February 2002. The applicant before the tribunal was Ms Soheila Keyani, a former employee of the Scheme. The tribunal held that she had been unfairly dismissed and that the Scheme had discriminated against her by way of victimisation contrary to section 2 of the Race Relations Act 1976. The Scheme, which appeared by Mr Peter Ward, appeals against the latter decision. Miss Catherine Rayner appeared for Ms Keyani.
2. Ms Keyani is of Persian origin and came to live in the UK when she was 12. She was employed by the South Westminster Victim Support Scheme ("SWVS") from January 1999. On 4 October 2000, SWVS amalgamated with the North Westminster Victim Support Scheme ("NWVS") to form the Scheme, which then became Ms Keyani's employer until 24 May 2001, the effective date of the termination of her employment. The events with which we are concerned occurred at a time when Ms Keyani was employed by SWVS. She worked for two hours a day, Monday to Friday. She was one of SWVS's three paid employees. The other two were its co-ordinator, Ms Laura Lewis, and its assistant co-ordinator, Mr Binns. In addition, there were several unpaid volunteers who worked with the victims.
3. The tribunal found that, during the course of Ms Keyani's employment at SWVS, five incidents took place in her presence which caused her concern. She raised them by way of complaints at a meeting on 2 October 2000 with Mr Segen, the SWVS chairman and pro bono solicitor. The complaints related to what Ms Keyani felt involved racial and cultural stereotyping. They were that:

1. During 1999 Mr Binns "had commented that a volunteer of Chinese origin had not completed his training session and Mr Binns had thought that the reason he had not attended was "something to do with his culture."

2. In June or July 2000, Mr Binns had found humorous a letter written by an SWVS client to an SWVS volunteer, Jennifer North, whom the client had addressed as "Jennifer North Esquire."

3. On an unidentified date Ms McManus, another SWVS volunteer, had said that a client of SWVS did not leave a domestic violent situation "because she was an Arab."

4. In about June or July 2000 there had been a conversation between Ms McManus and Mr Binns about the use of inappropriate language, and that the former had said that her cousin had visited America some time previously and her use of the words "nigger brown" had been questioned there.

5. In August 2000, Mr Binns apparently refused to send a letter helping a black client with a housing problem. Ms Keyani's concern was that such letters had been written in other cases.

4. The tribunal found that Mr Segen did not take the complaints seriously and suggested to Ms Keyani that she was a trouble maker. They also found that his dismissive view coloured his approach to the matter later on. But it was decided at the meeting that the concerns would be investigated by Ms Robertson on an informal basis and Ms Keyani was offered paid leave while this was done.
5. On 4 October 2000, SWVS and NWVS amalgamated to form the Scheme. Mr Segal became its chairman. Ms Robertson continued with her investigation and interviewed the people about whom Ms Keyani had complained. She reported on 15 December 2000, her findings being that she considered Ms Keyani had raised important issues of racism and anti-discriminatory practice. The tribunal found that Ms Robertson regarded the complaints as genuine and as needing to be dealt with.
6. On 24 May 2001, Ms Keyani was dismissed from the Scheme on the grounds, so the Scheme claimed, of redundancy. One of her claims to the tribunal was that she had been victimised in various respects under section 2 of the Race Relations Act 1976. To make this good, she needed to establish that she had done a protected act within the meaning of section 2, which reads:

"2. Discrimination by way of victimisation

(1) A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –

(a) brought proceedings against the discriminator or any other person under this Act; or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or

(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith."

7. The tribunal found that Ms Keyani's complaints to the Scheme about her colleagues' acts amounted to protected acts within section 2(1)(c) and (d). Having so held, they then considered whether she had been victimised in the ways alleged. They concluded that she had, and that the reason for her less favourable treatment was because she had made the complaints. On this appeal, the Scheme submitted that the tribunal erred in law in regarding any of the complaints as capable of amounting to a protected act. If it is right, it would follow that the tribunal's victimisation finding was fatally flawed and must be set aside.
8. The first question is whether the making of any of the complaints can be regarded as the doing by Ms Keyani of "anything under or by reference to [the 1976 Act] in relation to the discriminator or any other person" within the meaning of section 2(1)(c). Paragraph 67 of the tribunal's reasons shows that the tribunal held that it did, but does not explain why or how. In our view, such a conclusion is unsustainable. We do not find it easy to identify the precise scope of section 2(1)(c). But, to the question "did the making of the complaints amount to the doing by Ms Keyani of anything under or by reference to the 1976 Act?" we consider that the answer is no. She was not invoking any of its provisions. She was merely making a complaint about words said, or things not done, which concerned her. The fact that the 1976 Act was enacted for the purpose, as its preamble proclaims, to make fresh provision with respect to racial discrimination on racial grounds and relations between people of different racial groups does not mean that the making of complaints of the sort made by Ms Keyani amounted to the doing of anything under or by reference to the Act. We heard virtually no argument on the possible application of section 2(1)(c), we did not in fact understand Miss Rayner to seek to support the conclusion that it was in point in the present case, and we conclude that the tribunal were in error in holding that it was.
9. More difficult is the question whether the making of any of the complaints amounted to allegations within section 2(1)(d), which was the provision upon which most of the argument turned. The tribunal found that the complaints were made in good faith and so it matters not whether they were true or false (see section 2(2)). The question is whether they, or any of them, amounted to allegations that the Scheme or any other person had committed an act or acts which would amount to a contravention of the Act. Mr Ward submitted that none of Ms Keyani's complaints could or did so amount. Miss Rayner submitted that the tribunal were correct to conclude that they could and did.
10. The tribunal do not devote much reasoning to their conclusions on this point. We need refer only to paragraphs 67, 68 and 77 of their reasons:

"67. … However, the Tribunal concluded that her complaints to [the Scheme] about her colleagues' actions fell within section 2(1)(c) and (d). In coming to this conclusion, the Tribunal acknowledged that some of the events which were the subject of the complaints made by [Ms Keyani] had taken place some time before and had been raised with Ms Lewis on an informal basis. We accepted, however, that [Ms Keyani] was using these matters to demonstrate her concerns about the more recent matters. We concluded that the particular reference to the phrase 'nigger brown' in August 2000 was significantly of concern to [Ms Keyani] and offensive.

68. We concluded that [Ms Keyani] had made her complaints in good faith and was genuinely concerned about these matters and the way in which they demonstrated a possible attitude or approach by the volunteers and staff, and that this might in some way impinge upon their dealings with [the Scheme's] clients. …

77. … The Tribunal concluded that the complaints of racial and cultural stereotyping were sincere. …".

11. We have had some difficulty in agreeing with the Tribunal's conclusion that all five of the alleged remarks or acts of which Ms Keyani complained could have amounted to unlawful contraventions of the 1976 Act. Even assuming that any of them might be regarded as reflecting discriminatory attitudes, of which provision or provisions of the Act is it said they would involve a contravention? It is not enough to point to section 1 of the Act, which does no more than define racial discrimination. That section does not make racial discrimination unlawful. All it does is to define what it is. It is only an act of discrimination within that definition, being an act which another part of the Act makes unlawful, which constitutes a contravention of the Act.
12. Part 11 of the Act deals with discrimination in the employment field, and it was upon this that most of the argument focused. Three of the complaints, however, amounted at most to discriminatory remarks about, or actions relating to, SWVS's clients, and so in our view fell outside the ambit of Part 11. Perhaps slightly closer to that particular home was the complaint about the remark about the ex-volunteer who had not completed his training, the suggestion being that this had been "something to do with his culture." Again, however, we do not understand how a remark about an ex-trainee can fall within Part 11. If it can, we anyway do not understand how a remark of that sort could have amounted to treatment of that individual which was less favourable than that of anyone else, let alone how it could have subjected him to detriment.
13. The "nigger brown" complaint gave rise to most of the argument. The tribunal's finding was that the relevant conversation "may well have been about inappropriate language and changes in use of language, and Mr Binns had expressed this view to [Ms Keyani]." We interpret that imprecisely expressed finding as being that that was indeed the context in which the words were used. The primary question which was argued is whether the use of the words "nigger brown" in such a context was capable of amounting in law to an act of unlawful discrimination by SWVS within the terms of section 4(2)(c) of the 1976 Act, which reads:

"4. Discrimination against applicants and employees

…

(2) It is unlawful for a person, in the case of a persons employed by him at an establishment in Great Britain, to discriminate against that employee –

…

(c) by dismissing him, or subjecting him to any other detriment."

14. The essence of Miss Rayner's submissions was that the uttering of the offending words in Ms Keyani's presence was capable of subjecting her to detrimental racial harassment so that the tribunal were correct to regard the complaint about this incident as a protected act within section 2(1)(d). Miss Rayner advanced her argument extremely persuasively, but we have found ourselves unable to accept it. In arriving at our different conclusion, we have had regard to the following considerations.
15. First, we agree with Miss Rayner that it was not necessary for Ms Keyani to prove that the remark did in fact involve a contravention of section 4(2)(c). It was enough for her to show, if she could, that she had "asserted facts capable of amounting in law to an act of discrimination by an employer" within the terms of that sub-paragraph (see the observations of Waite LJ in Waters v. Commissioner of Police of the Metropolis [1997] ICR 1073, at 1097D).
16. Secondly, we make clear that we readily accept that in certain employment contexts a single use of the words "nigger brown" could constitute an offensive act of racial abuse or harassment capable of causing detriment to an employee sufficient to amount to an unlawful contravention of section 4. Such words, if directed at a particular black employee in an abusive way, would provide a clear instance in which such a contravention might be established. Even if such words were directed at others, but in the hearing of such an employee, we also accept that it might be capable of constituting racial harassment of that employee amounting to such a contravention (compare the decision of the EAT in Thomas and another v. Robinson [2003] IRLR 7, in particular the discussion at paragraphs 21 to 27).
17. Thirdly, however, English law has not reached the stage in which the mere use of particular words will by itself constitute an unlawful contravention of section 4. In law, context is usually everything, and this applies just as much to race discrimination law. The context in which the words "nigger brown" were used in the instant case was in a discussion about how language changes over a period and how certain phrases - such as "nigger brown" - which may once have been regarded as acceptable were no longer so regarded. There was no finding by the tribunal that Ms Keyani had complained that the words "nigger brown" were being used in that conversation in any overtly offensive way, let alone that they were directed offensively at her or anyone else.
18. Fourthly, this being so, the question for the tribunal was this: in making her complaint about the use of these words during this conversation, was Ms Keyani asserting facts which were capable of amounting to a contravention of section 4(2)(c)? If her allegation had been to the effect that the uttering of those words in her earshot amounted to an act of detrimental racial harassment of either herself or of anyone else as an employee, then (whilst we would have serious doubts as to whether she could establish such a claim), we would be disposed to accept that the tribunal could and should have answered this question in the affirmative. We do not, however, interpret the tribunal's findings as being to the effect that Ms Keyani was making a complaint of this nature. We conclude from them that the essence of her complaints was not that she was complaining that she (or anyone else) had been the victim of racial harassment by the use of the offending phrase. It was rather that she was concerned that a repetition of such a phrase (or like language) in the hearing of Scheme's clients would or might be offensive to them. The complaint was simply one of five which Ms Keyani "felt involved racial and cultural stereotyping" (paragraph 18 of the tribunal's reasons), and the tribunal found (in paragraph 13) that "[she] was genuinely concerned to hear those words [nigger brown] being used and was concerned about the impact of such words being heard by any of the clients of [the Scheme], particularly as a sizeable proportion of them came from ethnic minorities themselves." We have earlier quoted from paragraphs 68 and 77, which identify the real nature of Ms Keyani's complaints.
19. Fifthly, in summary, we conclude from the tribunal's findings that what Ms Keyani was complaining about was that the use of such language in the hearing of clients would be likely to be offensive to them. It was one example of what she perceived to be an element of racial and cultural stereotyping by staff members, and she was concerned that it ought to be stamped out since (as the tribunal found in paragraph 68) it "demonstrated a possible attitude or approach by the volunteers and staff, and that this might in some way impinge upon their dealings with [the Scheme's] clients." The tribunal found that that view was genuinely and sincerely held by Ms Keyani, and we would not for one moment question that. It was a complaint that, unless matters were checked, there was a risk that clients might in future be offended by the Scheme staff's choice of language. A complaint of that sort is not, in our view, an allegation of facts capable of amounting to an unlawful contravention of section 4(2)(c) of the Act.
20. There remains, however, the fifth incident of which Ms Keyani also made complaint, namely that in August 2000 Mr Binns apparently refused to send a letter helping a black client with a housing problem. Ms Keyani's concern was that such letters had been written in other cases. We regard it as clear, although her complaint was not spelt out very fully, that this amounted to an allegation that Mr Binns had acted in a way which was discriminatory to a black client compared with the sort of treatment which the Scheme provided to white clients. Miss Rayner submitted that, even if this could not be regarded as an assertion of an unlawful contravention of Part 11 of the 1976 Act, it could be regarded as one of an unlawful contravention of section 20 of the Act, which is in Part 111, headed "Discrimination in Other Fields". Section 20 is headed "Discrimination in provision of goods, facilities or services" and subsection (1) reads:

"(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services –

(a) by refusing or deliberately omitting to provide him with any of them; or

(b) by refusing or deliberately omitting to provide him with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person's case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section."

21. In our view, Miss Rayner is correct that the complaint about the fifth incident amounted to an assertion of facts capable of constituting an unlawful contravention of section 20, and Mr Ward advanced no very strenuous argument against that conclusion. In this connection, we should point out that this particular line of argument by Miss Rayner only arose during the course of argument before us, but Mr Ward raised no objection to its being advanced. We accept, therefore, that at least one of Ms Keyani's complaints amounted to a protected act within section 2(1)(d). We did not understand Mr Ward to submit that a score of only one out of five was fatal to the tribunal's conclusion that Ms Keyani's victimisation claim was established. We dismiss the Scheme's appeal against that conclusion.

B. The second appeal

22. The second appeal arises in these circumstances. On 7 March 2002, the Scheme asked the tribunal to review the merits decision. The main ground was that the Scheme had not called Ms Lewis as a witness at the original hearing "for fear of her health being jeopardised – she had suffered a nervous breakdown in summer 2000 that was wholly or partly attributable to the difficulties she was experiencing with [Ms Keyani], and took ill-health retirement on 31^st March 2001. With proper support Ms Lewis would now be able to give evidence." The suggestion was that her evidence would cast a whole new light on various matters decided by the tribunal in paragraphs 13, 15, 21, 52 and 67 of their extended reasons. It was suggested that she could give evidence as to whether Ms Keyani was offended by the "nigger brown" remark; that she could give evidence apparently directed at rebutting a favourable reference for Ms Keyani which she, Ms Lewis, had supplied, and which was in the agreed bundle of documents for the hearing; that she could give relevant evidence in relation to whether there was (as the tribunal found) a causal nexus between the mention of redundancy and the presentation by Ms Keyani of a complaint, although this was at the heart of the issues; and that she and another new witness (Chris Jordan) could have given evidence relevant to a particular finding relating to Ms Keyani's behaviour and personality, although it might be thought that the Scheme would have foreseen that this would be a central issue at the hearing; The Scheme further wanted to call a witness who could meet a conclusion that the tribunal had reached in paragraph 33, a point going to the practicality of doing two part-time jobs, yet another witness who could meet their conclusion in paragraph 36, and yet another witness, Maggie Frost, who could rebut the tribunal's finding in paragraph 65. The Scheme's point on all these paragraphs is that it says it could not have foreseen that the tribunal would make the findings in them that they did.
23. Ms Keyani's advisers responded to this application by written submissions dated 13 March 2002. Their essence was that the new evidence was directed at issues which were always in, and known to be in, the frame at the original hearing and that the application was simply an attempt by the Scheme to reverse an unfavourable decision.
24. By reasons sent to the parties on 11 April 2002, the chairman refused the review, saying that "In effect, [the Scheme] seeks to call further evidence to rebut some of the findings made by the Tribunal. It appears that the evidence to which they refer was available at the time of the full merits hearing, but was not submitted to that hearing." The chairman concluded that the application had no reasonable prospect of success. On 19 April 2002, the Scheme asked for the provision by the chairman of extended reasons for refusing the review. The response, on 1 May 2002, was that "There is no provision in the Rules for extended or summary reasons to be given on such a decision; our practice is to give brief reasons."
25. The Scheme appeals against the decision to refuse a review. It is said that the grounds for a review set out in the application dated 7 March 2002 were so compelling that the refusal was perverse. In our view, the grounds were not in the least compelling and there was nothing perverse about the chairman's decision. Whether or not to direct a review of the decision was a matter for her to consider having regard to the various grounds set out in rule 13(1) of the Employment Tribunals Rules of Procedure set out in schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. None of sub-paragraphs (1)(a) to (c) was in point. The only ones which might be regarded as in point were sub-paragraphs (1)(d) and (e), which read:

"(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that-

…

(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or

(e) the interests of justice require such a review."

26. The main reason advanced why the application for a review should have succeeded is that it is said that Ms Lewis was a key witness who was not able to attend the hearing because of illness, but could now give evidence. We regard that ground as carrying no weight at all, and we are not surprised that the chairman thought likewise. The application for a review did not assert that Ms Lewis could not have given evidence at the original hearing: it merely asserted that the Scheme had chosen not to call her for fear that her health might be jeopardised. No evidence was put before the tribunal that she could not have been called, or that her evidence could not have been taken in some alternative way which would have minimised any strain upon her. Nor is there is there any evidence that her state of health has changed since the original hearing. As regards the bid to call other witnesses, the Scheme wants to do so in order to rebut findings made by the tribunal, being findings which the Scheme asserts it could not foresee, but which Ms Keyani submits went to matters which were known to be in issue. That is an unusual basis on which to seek to call further evidence, and there is no suggestion that the evidence of these witnesses was not available at the time of the original hearing. If the tribunal made findings unsupported by any evidence adduced before it, then the making of such findings would be errors of law which could be the subject of an appeal. If there was evidence before the tribunal justifying the making of such findings, then the tribunal was entitled to make them. We can see no good reason at all why the Scheme should now be given the opportunity to call witnesses it could have called first time round but chose not to. We can identify no error of law on the chairman's part in arriving at the conclusion she did.
27. The second way in which this appeal is advanced is that it is said that the chairman was in error in making the decision to refuse a review herself. It is said she should have consulted the two lay members. This ground of appeal is an unpromising one bearing in mind that rule 13(5) provides that:

"(5) An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success."

28. Mr Ward accepts, therefore, that the chairman was empowered to refuse the application without consulting the lay members. But he says that, in the particular circumstances, the chairman should not have exercised that power. He relied on two decisions. The first was Hancock v. Middleton [1982] ICR 416. That was a case in which the employer sought a review of an unfair dismissal decision on the ground that he had not received notice of the hearing, which had therefore taken place in his absence. As he only received the tribunal's decision a month after it was posted, his application for a review was also necessarily made more than 14 days after the decision, and so was out of time. The chairman, sitting alone, refused the review application on the grounds that it had no reasonable prospect of success. The EAT allowed the employer's appeal. In delivering their judgment, Neill J said, at 419:

"It seems to us that there is material for a tribunal to investigate to decide whether or not the matter should be reheard or whatever other order should be made. It was not, in our judgment, a case which was suitable to be dealt with by a chairman alone acting under [the then equivalent of rule 13(5)]. It was a matter where the application should have been heard by the tribunal who could then have taken evidence and have decided whether or not they should alter their decision."

29. We do not regard that decision as supporting the submission that the chairman in the present case was wrong in deciding the matter alone. The circumstances in Hancock were very different. It was a case of an employer who claimed he had had no notice of the original hearing and had not even received the decision itself until a month after it was posted. If he was right on both matters, the case cried out both for an extension of time for applying for a review and for a review of the original decision. The first question was whether he was right, which raised questions of fact which should clearly have been decided by the whole tribunal after hearing evidence, after which they could then decide how to deal with the matter. We find it difficult to derive from the report on what basis the chairman felt able to reject the application on the basis that it had no reasonable prospect of success.
30. The other decision upon which Mr Ward relied was Tooley v. Brimelow, 19 June 2001, unreported, a judgment of the EAT delivered by Nelson J. The appeal arose in relation to a sexual harassment case in which a surprise witness, the applicant's father, was unexpectedly called to give evidence at the hearing in support of the complaint. There was a stark conflict of evidence in the case, and his evidence turned out to be crucial to the tribunal's decision in favour of the applicant. The respondent's representative was taken by surprise by the calling of the father, and did not cross-examine him or ask for an adjournment. The chairman, sitting alone, refused the respondent's subsequent application for a review. The appeal to the EAT was on the grounds that justice required a review (rule 13(1)(e)) and that the chairman ought not to have dealt with the matter alone. The appellant argued that the new material which needed to be considered was the fact that the applicant's father had made no statement to the police and that nor had the applicant herself even mentioned in her police statement that she had seen or spoken to her father about the alleged incident – matters which the respondent did not and could not know at the time of the hearing, and so could not put to the father. The appellant argued further that the chairman had not properly considered the element of surprise in the calling of the father (there had been an agreement for the exchange of witness statements, which included none from him). The EAT allowed the appeal and remitted the application for a review to the consideration of the full tribunal. The key part of the decision so to remit the matter was that "the Chairman in considering the matter by himself was inevitably considering matters which went to the heart of the factual dispute, into the resolution of which each member had played an important role. Any member could have felt that material which might have shaken the evidence of [the father], which they found so compelling, could have been important and justified a review."
31. If we may respectfully say so, we regard that as an unimpeachable decision. In the unusual course of events we have summarised, new material had become available which cast a question over the reliability of the father's evidence, being material whose existence was unknown to the respondent at the time of the hearing and which could not have been used by the respondent. The EAT understandably decided that fairness demanded that, in deciding whether or not there should be a review, that material should be considered by all the tribunal members, since all had contributed to the fact finding exercise required by the original decision.
32. The review application in the present case was, in our view, of a very different nature. This was not a case in which there had been any sort of procedural mishap at the original hearing such as had occurred in Tooley. On the face of it, the application was founded simply on the basis that, having read the tribunal's extended reasons, the Scheme concluded that it would like a re-hearing with the benefit of evidence from a number of witnesses all of whom it could have called at the original hearing but did not. The resolution of that application was not in our view akin to the type of exercise required by the review application in the Tooley case. We consider that it was just the type of application which was properly dealt with by a chairman sitting alone and we consider that the chairman committed no error in so dealing with the matter.
33. Finally, Mr Ward submits that we should order the chairman to give extended reasons for her decision to refuse a review. We do not propose to do so. Her brief reasons were perfectly sufficient. We dismiss this appeal as well.

C. The third appeal

34. The Scheme's third appeal is against the tribunal's decision at the remedy hearing held on 22 April 2002 at which it awarded Ms Keyani £7,500 for the injury to her feelings by reason of the victimisation, including an element of aggravated damages. The tribunal's extended reasons were sent to the parties on 9 May 2002. By paragraph 32 of those reasons the tribunal said that:

"32. … we concluded that the appropriate award would be £7,500. We concluded that it was appropriate to include in that award an amount of aggravated damages, having regard to the behaviour of [the Scheme] which we concluded had aggravated the damage already caused to [Ms Keyani]. [The Scheme], and in particular Mr Segen and Mr Segal to some extent, had acted high-handedly. [The Scheme] had failed to investigate [Ms Keyani's] complaints properly, had shown insensitivity and recklessness with regard to alleged complaints about [Ms Keyani], had failed to apologise to her and had dismissed her on spurious grounds. We concluded that such behaviour would attract an award of aggravated damages."

35. The Scheme complains that, in the absence of a breakdown as to the split between ordinary and aggravated damages, it cannot assess the fairness of the award. Mr Ward conceded that the tribunal had a jurisdiction to award aggravated damages, but argued that the overall award was anyway an excessive one for injury to feelings, and fell outside the generous range of awards open to a tribunal. He also argued that the tribunal failed to take into account that Ms Keyani was already suffering from stresses in her life requiring medical intervention, matters disclosed by a medical report dated 5 April 2002 which she produced at the remedies hearing.
36. In so far as the tribunal are criticised for not identifying what part of their award represented the award of aggravated damages, we regard the criticism as misconceived. In McConnell v. Police Authority for Northern Ireland [1997] IRLR 625, Lord Chief Justice Carswell said, at 629:

"19. It follows from these principles that an award of aggravated damages should not be an extra sum over and above the sum which the tribunal of fact considers appropriate compensation for the injury to the claimant's feelings. Any element of aggravation ought to be taken into account in reckoning the extent of the injury to his feelings, for it is part of the cause of that injury. It should certainly not be treated as an extra award which reflects a degree of punishment of the respondent for his behaviour. If Smith J intended to express approval of any different approach in Armitage, Marsden and HM Prison Service v. Johnson [1997] IRLR 162, where separate awards were made for injury to feelings and for aggravated damages, I should not find it possible to agree with that decision.

20. It is apparent from the concluding part of paragraph 5 of the tribunal's decision on remedies that it has fallen into error in this respect. It awarded £10,000 'for injury to feelings' and then added a further separate sum of £2,500 'by way of aggravated damages'….".

37. In the present case, the tribunal fell into no such error. We interpret paragraph 32 of their reasons as saying that, in arriving at the figure of £7,500, they had taken account of the element of aggravation to Ms Keyani's injury to her feelings. We consider that their decision reflects that they approached the exercise correctly and that there is no basis for any criticism that they failed to identify what part of the award represented aggravated damages. We also consider that their findings in the merits decision justified their award of aggravated damages.
38. Mr Ward submitted that the award of £7,500 was anyway perversely high. In Vento v. Chief Constable of West Yorkshire Police (No. 2) [2003] IRLR 102, the Court of Appeal gave some helpful guidance on the award of compensation for injury to feelings. The judgment of the court was delivered by Mummery LJ, and it set out these guidelines at 1110:

"65. Guidance

Employment tribunals and those who practise in them might find it helpful if this court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury.

(i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.

(ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.

(iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings."

39. The award of £7,500, including its element of aggravated damages, therefore puts this case near the bottom of the middle band. Mr Ward submitted that we could and should review the award, because although in paragraph 5 of their reasons the tribunal had indicated that they would take no further account of a medical report Miss Keyani had produced at a late stage, he said that paragraph 13 showed that they had in fact taken account of it. That paragraph does reflect certain findings also to be found in the report, but Miss Rayner pointed out that Miss Keyani gave oral evidence about her state of health and her treatment (and was cross-examined) and that it was not surprising that what she said was in part a reflection of what was contained in the report. We see no reason to assume otherwise than that the tribunal's findings about the effect of the Scheme's actions on Miss Keyani's state of health derived from her oral evidence.
40. Somewhat inconsistently with this last criticism, Mr Ward also submitted that the tribunal were wrong to refuse to consider the contents of the medical report. He submitted that part of it was relevant to Ms Keyani's claim in respect of her injured feelings. He emphasised, rightly, that the compensation the tribunal were awarding was and could be compensation only for foreseeable damage arising from the victimisation; but he said that, in doing so, the tribunal failed to take account of the fact that the medical report showed that Ms Keyani was "low in mood" from September 1999 onwards, was referred to a specialist clinic for depression in March 2000 and was put on a course of antidepressants; and that when she was examined on 26 September 2000, she was diagnosed as "still depressed." Mr Ward submitted that, by the time the victimisation started in October 2000, Ms Keyani was already in a poor psychological condition. He criticised the tribunal's decision to ignore the medical report and (in consequence) their finding that Ms Keyani first became ill in September 2001, some two years after the actual onset of her illness.
41. We have had some difficulty in understanding the nature of the arguments advanced to the tribunal about the use that might or might not be made of the medical report. The tribunal's extended reasons record (in paragraph 2) that, because of the late production of the medical report (it was only produced on the day of the remedy hearing), Mr Ward (who also appeared for the Scheme before the tribunal) objected to its being included in the bundle of documents produced by Ms Keyani. The tribunal then outlined (in paragraph 4) the options open to them with regard to the medical report. Two of these were (i) to take no account of it, given that it related in part to a personal injury claim, which was only a small part of Ms Keyani's overall claim, and (ii) to adjourn to allow the Scheme to consider the report in more detail and consider whether to call their own medical evidence. Then, in paragraph 5, the tribunal said this:

"5. We invited the parties' views on these options. Ms Rayner took instructions from [Ms Keyani] during a brief adjournment. [Ms Keyani] decided that she wished to pursue matters today and would withdraw the aspect of her claim relating purely to personal injury. It was therefore agreed that the Tribunal would proceed on that basis and take no further account of the medical report."

42. Mr Ward said that what in fact happened was that the Scheme objected to the last minute raising of a personal injury claim, which Ms Keyani agreed to withdraw. He said that the tribunal then directed that it would not give any further consideration to the report, although in his closing submissions he sought to rely on aspects of it, which the chairman (consistently with the earlier direction) refused to permit. Mr Ward submitted that the parts of the report were obviously relevant to the injured feelings claim, and the entirety of it should not have been disregarded merely because the personal injury claim had been abandoned. The Scheme's notice of appeal complains of the failure of the tribunal to take notice of the contents of the medical report, the point being that it showed that Ms Keyani was already suffering from mental and physical frailty by the time of the victimisation; and Mr Ward submitted that the compensation award should have reflected that she was already so suffering.
43. In the light of the way the tribunal expressed themselves in paragraphs 4 and 5 of their extended reasons, where they gave what appear to be cogent reasons for a direction to themselves to pay no regard to the medical report, we feel unable to attach any weight to Mr Ward's submissions that they should in fact have considered it. Their decision arose out of the Scheme's own objection to the late production of the report, we understand that Ms Keyani then elected not to put it in evidence and the tribunal decided they would taken no account of it. We do not find it easy to see on what basis the Scheme could then claim to rely on a report upon which Ms Keyani herself was no longer relying on. But in any event, if the Scheme wanted to claim that the tribunal misdirected itself in failing to have regard to it, then we consider that any such assertion should be founded on a freestanding ground of appeal to that end, whereas no such ground appears to be advanced. We do not consider that there is any justification for the Scheme's criticism that the tribunal did not consider the report.
44. All that being so, whilst we are inclined to regard the award (even taking account that it included an element of aggravated damages) as perhaps somewhat on the high side, we are by no means satisfied that it can be regarded as perversely high, or that any grounds have been shown which might justify our interfering with it. At 109 in the Vento decision, supra, the court also said this:

"51. Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury. In these circumstances an appellate body is not entitled to interfere with the assessment of the employment tribunal simply because it would have awarded more or less than the tribunal has done. It has to be established that the tribunal has acted on a wrong principle of law or has misapprehended the facts or made a wholly erroneous estimate of the loss suffered. Striking the right balance between awarding too much and too little is obviously not easy."

45. We have not been persuaded that there is any basis on which we ought to review the amount of the tribunal's award. We dismiss this appeal as well.