Appeal No. UKEAT/0415/05/CK

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 31 January 2006

Before
HIS HONOUR JUDGE BURKE QC
MRS R CHAPMAN
LORD DAVIES OF COITY CBE

MISS H WILLIAMS 	APPELLANT

NORTH TYNESIDE COUNCIL  	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ROBIN ALLEN QC 
(of Counsel)
and 
MR MOHAMMED HAY 
(of Counsel)
Instructed by:
Mr Jean Etienne Attala
Beecham Peacock Solicitors
(Employment Law Dept)
7 Collingwood Street
Newcastle upon Tyne NE1 1JE
	
For the Respondent	MR B MORETTO
(of Counsel)
Instructed by:
Messrs Dickinson Dees
Solicitors
St Ann’s Wharf
112 Quayside 
Newcastle upon Tyne NE99 1SB	

SUMMARY

Unfair Dismissal: Mitigation of Loss & Public Interest Disclosure 

The Tribunal found that, after dismissal, the employee had unreasonably “taken herself out of the world of work” by enrolling on a 4 year university course and calculated her compensation for loss of earnings and loss of pension for unfair dismissal only to the start of that course without considering when, if she had acted reasonably, she would have obtained employment  and at what rate etc.  The Tribunal also considered only one of four aspects of the employee’s aggravated damages claim arising from the employer’s admitted subjecting her to detriment for making a protected disclosure.

Remission on both points to same Tribunal, which had heard the evidence or much of it. Remission to a new Tribunal disproportionate and unnecessary.  

HIS HONOUR JUDGE BURKE QC
The Appeal

1.	This is an appeal by the Applicant before the Tribunal, Ms Williams, against the assessment of compensation made by the Employment Tribunal sitting at Newcastle upon Tyne, chaired by Ms Martin and sent to the parties with written reasons on 16 May 2005.  

2.	Ms Williams was employed by the Respondents, North Tyneside Council from 1 March to 1 September 2004.  She claimed that she had been subjected during the course of her employment to detriment because she had made a protected disclosure, pursuant to s47B of the Employment Rights Act 1996; and she claimed that she had been unfairly constructively dismissed on three grounds: first, for Health and Safety reasons, under s100C of that Act; secondly, for making a protected disclosure, pursuant to s103A of the Act; and thirdly, for asserting a statutory right, pursuant to s104 of that Act.  The Council originally denied all these claims and contended that they had acted entirely reasonably.

3.	The hearing before the Tribunal commenced on 23 February and continued until 25 February when it was adjourned part heard.  During those three days, the Tribunal heard evidence from Ms Williams and two witnesses on her behalf and from some of the witnesses whom it was intended to call on behalf of the Council.  Those witnesses were Mr Oakley and Mr Potts.  

4.	Mr Potts was an employee of Ms Williams’ previous employers; his witness statement shows that he was to give evidence and, no doubt, did give evidence, to the effect that Ms Williams was an unsatisfactory employee and should not be believed.  Mr Oakley was also critical of Ms Williams in various respects.  

5.	After the Tribunal had adjourned the proceedings part heard, the Council shortly before the date fixed for the resumed hearing, admitted liability in respect of all of Ms Williams’ claims.  Accordingly, when on 18 April the Tribunal reconvened, they used that day to assess compensation under the various heads of claim.  

6.	Under the s47B claim the Tribunal at paragraph 34 of their judgment, awarded Ms Williams the sum of £5,000 for injury to feelings.  At paragraph 37, they set out their reasons for declining to make an award of aggravated damages under that head of claim, that being the only head of claim which could, in law, attract such an award.  They then considered compensation for financial losses arising from unfair dismissal.  They found as fact that, within a few weeks of the termination of her employment, Ms Williams had enrolled on a four-year university course and had thus unreasonably taken herself out of the employment market.  They also found that she had not applied for any jobs before embarking on that university course.  The Tribunal, as a result of those findings, decided to limit the award in respect of financial loss arising from unfair dismissal to the period up to the beginning of the university course.  The total compensation which they awarded was £2,257.17 of which just over £205.00 consisted of pension loss, calculated on the basis of the employer’s contributions at 10% of Ms Williams’ salary over the relevant period. 

7.	By her Notice of Appeal, as amended with the permission of the Employment Appeal Tribunal in the course of the preliminary hearing of her appeal, Ms Williams attacks the Tribunal’s conclusion on three grounds.  In the order in which they appear in the Amended Notice of Appeal, they are: 
(1)	that the Tribunal’s award for pension loss, calculated only on the employer’s contributions, was made on an erroneous basis;
(2)	that the Tribunal, having found that Ms Williams had failed properly to mitigate her loss by not seeking employment and instead embarking upon a university course and thereby taking herself out of the job market, erred in law in cutting off her compensation at the date when she started that course and should have gone on to decide when, had she not failed reasonably to mitigate her loss but had acted reasonably in that respect, she would have gained further employment or earned further income and what that further income would have been.  
(3)	that the Tribunal had erred in their approach to the issue of aggravated damages.  The ground of appeal in this respect reads as follows:
“It [that is to say the Tribunal] failed to apply the correct test in the light of Alexander v The Home Office and Armitage (1) Marsden (2) and HM Prison Service (3) v Johnson decisions referred to at paragraphs 4 and 37 (aggravated damages) of its judgment and confining itself only to the conduct of proceedings by the Respondent as the only relevant test”.

8.	We intend, for reasons which will become clear, to address the mitigation issue first, then the pension issue and finally the issue of aggravated damages.  

The Facts
9.	First, we must set out the facts, albeit it is not necessary to set them out in any detail.  Because liability was eventually admitted, the Tribunal did not make detailed findings.  In brief terms, Ms Williams who had worked for 14 years in local government before she became employed by the Council, complained soon after that employment started that her immediate manager, Mr Pringle, had been bullying and harassing her and had been bullying others.  As a result, because she shared an office with Mr Pringle, she was asked and agreed to work at home for a few weeks.  When she returned, Mr Pringle was moved or had been moved to another office.  The Council, however, refused to accept her formal presentation of a grievance; Mr Pringle refused to have any direct communication with her, she was cold-shouldered by her colleagues; she was not invited to team meetings.  Issues were raised as to her capability or conduct in her job.  

10.	On 28 July 2004 Ms Williams wrote a letter of resignation giving one week’s notice which terminated on 4 August.  The Tribunal found, at paragraph 39 of their judgment, that what caused Ms Williams to resign was that she had been bullied and harassed by her immediate line manager, that is to say Mr Pringle, and that the Respondents dealt with her formal grievance.  Her resignation for these reasons ultimately led to her admitted constructive unfair dismissal.  

11.	The Tribunal found that, by mid-August, Ms Williams had registered with three job agencies by sending them her CV and had sought Jobseeker’s Allowance.  In mid-September, after being informed by the Council that Ms Williams had left her employment voluntarily, Jobseekers terminated her Jobseeker’s Allowance.  She then decided to re-train by enrolling on a four-year BSc course in building project management at Northumbria University which she commenced on 20 September.  The Tribunal found that she had not thereafter, until January 2005,chased up the agencies with which she had registered and that she did not, at any time thereafter, apply for any other jobs.  They also found that she had not extended her job search beyond the field of local authority insurance and had not looked at the commercial market or for other types of work.  

The Mitigation Issue
12.	Ms Williams, who represented herself before the Tribunal, set out in a Schedule attached to her closing submissions a claim for past loss of earnings arising from her dismissal from the date of that dismissal to the date of the first hearing before the Tribunal – a period of seven months - and a claim for future loss of earnings from that hearing date to July 2006, making her claim inclusive of past and future loss one for a period of two years in all. 

13.	The Council, in their closing submission, put forward detailed arguments based on the evidence that Ms Williams had failed to make reasonable or genuine efforts to find alternative employment and, in particular, submitted that, by enrolling on the university course, she had, of her own volition, abandoned her search for employment and had opted out of the world of work.  On that basis, the Council, it was submitted, should not have to pay for any period after 20 September or, alternatively, had reasonable attempts to obtain work been made, Ms Williams would or should have found work in five months.  The Tribunal plainly accepted the former of those submissions in paragraph 40 of their judgment.  They said this:
“This Tribunal finds that the claimant’s decision six weeks after termination of her employment to seek to enrol on a four year University course unrelated to her current occupation was not reasonable because she took herself out of the employment market in circumstances where she had not applied for any jobs before deciding to enrol on that course.  Further, her decision to enrol on the course as she admitted in evidence before this Tribunal immediately followed the decision by job seekers to reject her claim in mid September”

and the Tribunal said at paragraph 41:

“Accordingly this Tribunal find that the claimant’s losses relating to her unfair dismissal are limited to the period when she commenced her University course on 20 September”.  

14.	Mr Allen QC, on behalf of Ms Williams, submits that in so deciding to limit the award of compensation for unfair dismissal to the period to 20 September 2004, the Tribunal acted in breach of well-established principles which apply when an employee is found to have failed properly to mitigate his or her loss.  Those principles, he submitted, require in such a case that the Tribunal should decide when, had the employee acted reasonably to mitigate his or her loss, the employee would have found alternative employment and what the benefits and emoluments of such employment would have been and should then award the employee compensation up to the time at which she would have found alternative employment if that employment made up all of her emoluments and benefits or, if the employment was on lesser terms, should continue an award of partial loss thereafter until that partial loss would have ceased.  In our judgment, if and in so far as the Tribunal’s decision is based on a failure on Ms Williams’ part to mitigate her loss, that submission of Mr Allen is well-founded.  Indeed, Mr Moretto, on behalf of the Council, does not dispute it.   

15.	The Skeleton Argument of Mr Hay, Mr Allen’s junior, refers to a consistent stream of authority supporting or applying these principles which it is not necessary for us to set out in the light of the stance which Mr Moretto has sensibly adopted.  In paragraph 21 of the Skeleton Argument, Mr Hay quotes the relevant passage of Harvey:
“(a)	The starting point is s.123 ERA 1996 and in particular sub-section 4, that in calculating the employee’s loss tribunal shall apply ‘the same rule concerning the duty of a person to mitigate his loss as to damages recoverable under the common law’

(b)	When assessing the amount of deduction for the employee’s failure to mitigate his loss, a tribunal should not reduce the whole compensatory award by a percentage.  

(c)	It should instead decide when the employee would have found work and take into account any income which the tribunal then considers he would have received from that other source”.  

It is not necessary to read the quotation further.

16.	In Gardiner-Hill v Roland Berger Technics Ltd [1982] IRLR 498, this principle was set out in clear terms by the Employment Appeal Tribunal, presided over by the then President, Browne-Wilkinson J.  The Tribunal in that case had awarded the employee 20% of his compensation for unfair dismissal, reducing it by 80% because he had spent 80% of his time unreasonably, as the Tribunal found, setting up his own business instead of trying to get another job.  The EAT held that that approach was wrong.  At paragraph 12 of the judgment, the EAT said this:  
“Moreover, although it is not necessary for us to go into it in great detail, it is well-established that it is inappropriate in dealing with failure to mitigate damages to reduce the amount of the compensation by a percentage.  In order to show a failure to mitigate, it has to be shown that if a particular step had been taken, Mr Gardiner-Hill would after a particular time, on balance of probabilities, have gained employment.  From then onwards, the loss flowing from the unfair dismissal would have been extinguished or reduced by his income from that other source.  In fixing the amount to be deducted for failure to mitigate, it is necessary for the Tribunal to identify what steps should have been taken, the date of which that step would have produced an alternative income and thereafter to reduce the amount of compensation by the amount of the alternative income which would have been earned.  Since that is the principle of mitigation, a reduction in the percentage of the total sum representing compensation for the whole period is inappropriate”.    

This, of course, is not a case in which the Tribunal adopted a percentage approach, but the principle by which compensation, where there has been a failure to mitigate, is to be assessed applies to this case as much as it did in Gardiner-Hill.  It is not necessary in the circumstances for us to go into further authority.  Mr Moretto does not seek to limit or undermine that principle.  His submission is that the Tribunal did not limit their award on the basis of a failure to mitigate but on the basis that Ms Williams’ decision to enrol on her University course broke the chain of causation between her dismissal and any loss of income which occurred thereafter.  He refers to s123(1) of the Employment Rights Act 1996 which provides:  
“123 Compensatory award 

(1)	Subject to the provisions of this section [and other sections to which we need not refer] the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer” 

and he submits that the Tribunal must, in any case, consider whether the loss claimed is attributable, in other words was caused by, the unfair dismissal, and that is a task which the Tribunal needs to carry out irrespective of any issue of mitigation.  He submits that it was open to the Tribunal in this case to decide, as they did, on the basis that Ms Williams’ decision to go to university broke the chain of causation.  He submits that the Council put their case to the Tribunal on the basis that the chain of causation was broken by her actions and that the Tribunal, in paragraphs 40 and 41 of their judgment responded by accepting that argument.

17.	There is no doubt that a Tribunal may find that a particular event or a particular act of an employee has broken the chain of causation between the dismissal and items or periods of loss in respect of which the employee claims.  That is clear from Simrad Ltd v Scott [1997] IRLR 146, Khanum v IBC Vehicles Ltd EAT/685/98 and Orfet Ltd v Vince Kane [2004] IRLR 857.  We do not think it is necessary to refer in detail to what was said in those cases, but it may be helpful to refer briefly to Essa v Laing [2004] IRLR 864 in which, while the principal issue related to awards for personal injury arising from discrimination, comments were made in the Court of Appeal on the issue of causation.  For example Pill LJ in paragraph 43 of the judgment in that case said:
“I would hold that, on the facts of this case, foreseeability of significant injury to feelings is obvious and for the reasons given, the foreseeability test is therefore satisfied with respect of psychiatric illness.  Causation needs to be established and issues including intervening act and mitigation considered”.  
Clark LJ, in paragraph 53, said:
“I agree with Pill LJ that there is no need to add a further requirement of reasonable foreseeability.  The robust good sense of the Employment Tribunals can be relied upon to ensure that compensation is awarded only where there really is a causal link between the act of the discrimination and the injury alleged”.

18.	Mr Allen submits that the Tribunal here did not decide this point on the issue of causation, but decided it on the issue of mitigation, and he supports that submission by pointing out that, in the Council’s closing submissions, there is no reference, he says, to any issue of causation at all.  Those submissions are couched in terms of the Council’s case that Ms Williams had failed properly to mitigate her loss.  

19.	Mr Moretto submits that, in paragraph 9 in particular of their submissions, the Council did raise the issue of causation and that the words of the Tribunal in paragraphs 40 and 41, in particular paragraph 41, indicate that they were reaching their decision by following the causation route.  

20.	In our judgment, Mr Allen’s submissions are to be preferred.  The Respondent’s closing submissions to the Tribunal do not, as we read them, suggest that the Tribunal’s decision to cut off compensation after the date on which Ms Williams commenced her university course could, or should, be based on a breach in the chain of causation.  Paragraphs 2 to 8 of those submissions are couched in terms of Ms Williams’ failure to make reasonable and/or genuine attempts to obtain alternative employment.  

21.	Paragraph 8, which refers to her university course, describes that as an unrealistic option for her to choose and submits that she had not chosen to take her search for alternative employment seriously.  It refers to Gardiner-Hill which, it is accepted, is a case on mitigation and not a case on causation.  

22.	Paragraph 9, in which the Council submit that their primary position is that the Council should not have to pay for any period of loss after the Claimant commenced the university course and is followed by a fall-back submission that if the first submission fails, five months would have been a reasonable period of time for Ms Williams to find work, is a paragraph setting out the conclusion which the Council were inviting the Tribunal to reach, based on what they had set out above in paragraphs 2 to 8.  Paragraph 9 does not expressly refer to causation: and we do not see that, implicitly it refers to causation as opposed to the much more obvious and apparent role that it plays in those submissions.  

23.	It is correct that the Tribunal, in setting out a number of authorities which they say they had considered in paragraph 4 of their decision, referred to the case of Simrad; but we have not been told how this case was put before them.  It is not suggested that it was put before them in oral submissions on behalf of the Council.  It is not suggested that in oral submissions, the Council went further towards pressing the causation argument then they had done in their written submissions; and, in our judgment, the Council did not put their case on the basis of a break in the chain of causation.  When we look at the language of paragraphs 40 and 41 (which should be read together) it appears to us to be clear that the Tribunal reached their decision on the basis of applying the doctrine of mitigation rather than any principle of causation.  In paragraph 40, as we have indicated by reading out that paragraph, they found that the decision to go to university – we use their words – “was not reasonable”.  

24.	The Tribunal start paragraph 41, in which they expressed the conclusions which they derived from their findings at paragraph 40, with the word “accordingly”.  That is a plain reference back to what they had said in paragraph 40.  Mr Moretto submits that the use of the words “this Tribunal find that the Claimant’s losses relating to her unfair dismissal are limited” and in particular the words “relating to” indicate that what the Tribunal had in mind was the attributability test set out in s123(1).  We do not take that view and do not think that that argument is at all persuasive when the judgment is read as a whole.  Both the record of the parties’ submissions and the way in which the Tribunal expressed their conclusions indicate clearly to us that they were deciding this issue on a mitigation basis and not on a causation basis: the words “relating to” meant no more than “arising from”.  

25.	Accordingly, in our judgment, the Tribunal’s conclusion was not that the chain of causation had been broken but that Mr Williams’ loss must stop at 20 September because she had failed to mitigate her loss reasonably.  That conclusion was reached in breach of the principle which we have set out.  The Tribunal ought, as a matter of law, to have gone on to make further findings on the material before them as to when Ms Williams, had she acted reasonably, would have obtained alternative employment and what losses she sustained up to that time or, indeed, after that time if such employment did not match, in terms of its rewards, what she would have received had she continued in employment with the Council and had not been unfairly dismissed.  

26.	We cannot possibly decide what the correct sum should be.  Plainly, the assessment of the correct sum needs to be remitted to an Employment Tribunal.  We will deal further with the nature of that remission later in this judgment.

The Pension Issue
27.	We have taken this issue after the mitigation issue because, if the Tribunal had been right to calculate the loss of earnings and future benefits on the basis that they should not proceed beyond 20 September, any pension loss calculation would undoubtedly have produced a very small figure indeed; and the more complex calculation, which it is said on Ms Williams’ behalf ought to have been made (to which we will refer in a moment) would not have been merited.  Employment Tribunals are entitled to adopt a pragmatic and proportionate approach to the calculation of pension loss; and it would be wholly impracticable and disproportionate when only a short period was in issue for detailed and difficult or even actuarial calculations to be embarked upon.  Thus, if the appeal against the pension calculation were put independently of the appeal on the mitigation issue, it would fail.  Mr Allen QC did not wholly concede that that was so but accepted that he would have great difficulty in persuading us to the contrary.  

28.	However, we have expressed our conclusion that the Tribunal erred in law in their approach to the consequences of their finding that Ms Williams had failed reasonably to mitigate her loss and it is, as we have said, clear that there will have to be a remission.  The Tribunal which considers the question of loss arising from constructive unfair dismissal anew will have to consider what, if any, further period of loss of earnings ought appropriately to be awarded and for what, if any, further period there is or has been a loss of pension.  If the period of pension loss which they determine to be appropriate is very short, they may well take the view that a pragmatic and proportionate approach does not require them to embark upon a calculation beyond the simple mathematical calculation of the loss of employer’s contributions.  Otherwise, the Tribunal will need to consider the appropriate approach to calculation of pension loss, and in doing so, in the case of a local government pension scheme based on final salary, they will want to consider the modes of calculation set out in the 2003 edition of the Employment Tribunal booklet called “Compensation for Loss of Pension Rights” particularly under the chapters which deal with what has been described as the simplified approach.  They may need also to have in mind the guidance given by the EAT in Bing v Holborn Engineering Ltd [1992] IRLR 298, Clancy v Cannock Chase Technical College [2001] IRLR 331 and Orfet v Vince Kane to which we have already referred.  We need say no more about the pension issue.  

The Aggravated Damages Issue
29.	The claim for aggravated damages and the claim for injury to feelings arose only under the head of claim based on s47B of the 1996 Act.  It is not in dispute that the Tribunal had power to consider aggravated damages under that head of claim.  In her written submissions to the Tribunal, Ms Williams relied in support of her claim to aggravated damages on four aspects of the history.  They were, firstly, that the Council, as she said, did not carry out a full and fair investigation and Mr Oakley, as the investigating officer, covered up issues; secondly, the Council had not offered any form of apology; thirdly, and this head related in part to what had happened during her employment but also in part to what happened during the course of the proceedings, the Council had made allegations relating to her credibility, professional standing and her ability to carry out her role; and fourthly, the Council had discussed her case with her previous employers and requested that they attend to give evidence to support allegations relating to credibility, the Council intending thereby to embarrass, intimidate and deter her from pursuing the case.  That last point was a reference to the evidence of Mr Potts which we have already described.

30.	The Council’s submission was that they had acted reasonably throughout, once Ms Williams had raised her complaint against Mr Pringle, and had done nothing to attract an award of aggravated damages.  Neither party in their submissions, therefore, concentrated solely on the acts of the Council in the course of the proceedings which, of course, did not start and were not heard until well after the termination of Ms Williams’ employment.  Both sets of submissions referred to the leading case in this area: Alexander v The Home Office [1988] IRLR 190, in which the Court of Appeal set out the test as to whether aggravated damages are or might be appropriate in these terms:  We cite only the head note, for it is unnecessary to do more.
“Compensatory damages may, and in some instances should, include an element of aggravated damages where, for example, the defendant may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination”. 
This, of course, was not a discrimination case, but the principle is agreed to have applied in equal measure; and, indeed, those words were substantially quoted in the Council’s closing written submissions.  The Tribunal, in their judgment, refer at paragraph 4 to having considered Alexander and the following decision of Armitage v Johnson in the Employment Appeal Tribunal (which it is not necessary specifically to refer to) and there is no reason to suppose that they did not have that basic and well-known principle which governs decisions as to aggravated damages well in mind.  

31.	In the course of the proceedings, it is clear that the Council did attack Miss Williams’ credibility and her character through the evidence of Mr Potts and also through the evidence of Mr Oakley.  In paragraph 37 of their decision the Tribunal set out that Mr Potts had been called.  They went on to say:
“However, the Respondents before the reconvened hearing conceded all the Claimant’s claims thereby avoiding the need for the Claimant to have to cross-examine her former colleagues.  The Respondent’s conduct at the proceedings does not lend itself to making an award for aggravated damages in this case”.

32.	Mr Allen QC has put his appeal against this part of the Tribunal’s decision in two ways.  First of all, he submits that, although it was clear that Ms Williams was putting forward her aggravated damages claim under four different heads, the Tribunal had only, in paragraph 37, dealt with the last of those four heads, namely the conduct of the proceedings, and nowhere in their decision dealt with the other heads or limbs of her case.  Secondly, he submits that the conduct of the Council was, to put it very shortly, so bad that in deciding, as they did, that there should be no award of aggravated damages in relation to the conduct of the Council during the course of the proceedings, the Tribunal must have applied the wrong test.  

33.	Mr Moretto submits that that second argument is not open to Ms Williams on the basis of the Notice of Appeal.  It is apparent, as we see it, that the words of paragraph 37 of the Tribunal’s decision, relate only to the Council’s conduct of the proceedings.  Mr Moretto submits that, in paragraphs 5 to 14 and in paragraph 33 of their decision, the Tribunal made findings of fact as to what had occurred during the course of Ms Williams’ employment which did not include any findings such as would justify an award of aggravated damages, although it is clear that they found that her life had been made very unpleasant for her over the last six to seven weeks of her employment for the reasons which they had earlier set out.  He submits that, in paragraph 34, the Tribunal placed the injury to feelings not in the serious category (the top of the three categories set out in the well-known case of Vento) but at the bottom of the middle band or middle category and thus awarded £5,000; and he submits that that shows that they did not take the view that this was a case for aggravated damages.  Mr Moretto submits, that if the decision is read as a whole, it can be seen that the Tribunal have concluded that this was not a case for aggravated damages in respect of the matters other than those covered by paragraph 37 and that there is a comprehensive set of findings which supports that submission.  

34.	There are a number of difficulties in this argument.  The first is that aggravated damages are only expressly referred to, other than in terms of the submissions of the parties, in paragraph 37 and thus only in the context of the conduct of the proceedings.  There is, in our judgment, nothing to indicate that the Tribunal considered the events during the course of the employment in terms of whether aggravated damages or not should be awarded.  Secondly, although it is correct to say that the Tribunal placed the award for injury to feelings at the lower end of the middle band, that does not exclude of itself an award of aggravated damages.  Injury to feelings may be relatively low, perhaps because it does not last for very long; but nonetheless, it is open to a Tribunal to conclude that the employer has behaved in a high-handed or malicious or insulting or oppressive manner.  

35.	In our judgment, the Tribunal erred in failing to consider and set out conclusions as to the claim for aggravated damages in respect of the limbs of Ms Williams’ argument other than that based on the way in which the proceedings were conducted and the issue of whether such aggravated damages should or should not be awarded and, if awarded, in what sum must be remitted to a Tribunal.  

36.	As to Mr Allen’s second submission that paragraph 37 reveals that the wrong test was applied, we take a different view.  We do not think it is necessary for us to decide whether the second point is or is not covered by the Notice of Appeal because on the hypothesis that it is covered, we are nonetheless not persuaded that it is well-founded.  It is necessary to point out that there is not in this Notice of Appeal any attack on paragraph 37 as being perverse.  Mr Moretto, in the course of argument, was concerned that Mr Allen’s submissions were getting very close to so suggesting; and, we have to say, so were we; although it is fair to say, however, that as soon as the point was raised Mr Allen QC entirely properly disclaimed any intention to raise perversity.  

37.	The reality is that, however surprising (as to which we make no comment) the conclusion in paragraph 37 might be thought to be, there is nothing to indicate that in reaching that conclusion the Tribunal applied the wrong test.  They had the right test pointed out to them by both parties, there is nothing to suggest that they misunderstood it and nothing to suggest that they misapplied it.  In those circumstances, in so far as this part of the appeal is based on an attack on paragraph 37, it fails.  

Remission
38.	It is plain from what we have said that there must be a remission to the Tribunal of two issues.  The first issue is the calculation of financial loss arising from unfair dismissal according to law.  The second is ascertainment whether aggravated damages under the heads or limbs of the aggravated damages claim (other than those arising out of the conduct of the proceedings) should be awarded and, if any, the amount of such award.  

39.	The parties do not agree as to whether this is a case for remission to the same Tribunal or to a different Tribunal.  Our decision is that the remission should be to the same Tribunal.  There is no doubt that the Tribunal heard a great deal of evidence which, in relation in particular to the aggravated damages claims but also in relation to future loss, should not need to be gone through all again and, indeed, does not need to be gone through all again.  It would be disproportionate for it to be gone through all again in a case which may be substantial – and we do not suggest for one moment that it is not substantial to Ms Williams – but, in our judgment, is never going to be a case involving very high sums.  Secondly, the Tribunal have erred in the manner that we have set out; but we do not regard their decision as fundamentally flawed; and there is no challenge to their findings of fact, in particular the findings of fact at paragraphs 40 and 33.  Thirdly, no great deal of time as passed since the decision in May of last year.  Fourthly, there is no suggestion of partiality or bias.  Fifthly, there is no reason to suppose that the Tribunal will not be able, in the light of this judgment, professionally and properly to approach the decisions which it is for them to decide.  

40.	Accordingly, although we understand why and have not forgotten that Mr Allen submits that the remission should be to a new Tribunal, we disagree and will remit this case to the same Tribunal.  On remission we need to say that we see, at the moment, no need for any further evidence save on the issue of how long it would have taken Ms Williams to obtain further work, of what type that work would be, what she would or would not have earned, what she would otherwise have gained from such employment and as to the calculation of pension loss, if such calculation falls to be made.  The Tribunal should not be asked to consider the evidence of Mr Potts at all: and Mr Moretto has indicated that the Council would not seek to go beyond the findings of fact, so far as the history of the employment is concerned, or seek to put forward again any attack on Ms Williams which they earlier developed.  

41.	Thirdly, it seems obvious from what we have said that on the issue of compensation for unfair dismissal, it will be open to the parties, if they so wish, to argue not only mitigation, but any issue of attributability.  

42.	One last thing before we depart from this case.  We have just said that we think it is unlikely that this case will, looking at it pragmatically or from Ms Williams’ point of view, carry with it a very large sum of compensation.  Whether any additional compensation (it may be none for all we know) which may be recovered is going to be worth the costs involved is something the parties may or may not wish to think about; but we would like to suggest to both parties that there are gains to be made from an attempt to deal with this matter without resort to a further hearing.