Appeal No.	EAT/1138/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 July 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR J R CROSBY
MR P DAWSON OBE

MR S BLOWMAN	APPELLANT

(1) LUMONICS LTD  (2)  MR MEL SMITH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MR A BRUCE
(of Counsel)
Instructed By:
Kundert & Co
3 Copthall House
Station Square
Coventry
CV1 2FD	

	MR JUSTICE LINDSAY (PRESIDENT):	We have in front of us by way of a full hearing of the appeal, the appeal of Mr Sean Blowman in the matter Blowman against two Respondents, firstly, Lumonics Ltd and secondly, Mr Mel Smith.  Mr Bowman is in person before us and the two Respondents appear by Mr Bruce.

1	There was a hearing spread over some three days in March 1999 of Mr Blowman’s claim for disability discrimination.  Lumonics had been his employer and Mel Smith his Manager.  Mr Blowman unfortunately suffers from CFS or ME (the description seems to be alternative).  In outline his case against the employer was that, by reason of his disability, he had earlier been switched to a unique job specially created for him and that that unique job then, some five or so months later, became redundant.  Had he not had the disability, he said, he would have remained in a general pool in which, given his qualities, he would not have been likely to be redundant.  In that sense, he claimed, he had suffered less favourable treatment for a reason which related to his disability.  The case against Mel Smith was one of verbal harassment and, of course, the issue also arose of vicarious liability on the part of the Company for their Manager’s verbal harassment.  On 25 March 1999 the Liability Decision was sent to the parties and it was:

“The unanimous decision of the Tribunal was that the applicant had been unlawfully discriminated against contrary to the terms of the Disability Discrimination Act 1995 and had been unfairly dismissed contrary to the terms of the Employment Rights Act 1996.”

2	The matter was accordingly listed for a Remedies Hearing.  There is no appeal against the Liability Decision.  It would have been arguable that Mr Blowman had been treated exactly as would have been anyone holding his unique job, as a technical author, in the sense that that job became genuinely redundant and that its holder accordingly became redundant in the circumstance that, even if there had been proper consultation, which it was held there had not been, even so the decision to dismiss him would have been the same.  It was in that way arguable that section 5 of the Disability Discrimination Act was not in play.  See also section 6 (7).  However, the Tribunal concluded:

“The decision to make the applicant redundant was also related to his disability because the applicant would not have been made redundant if he had not been moved to the job of technical author.  The reason for redundancy was because the technical author post became redundant.”

And a little later:

“It was clear to the Tribunal that the applicant was employed as a technical author as a result of the decision by the respondent to create such a post because of the applicant’s disability and their intention to help him back into work following that disability.  Approximately 5 months later the respondents decided that this post was now redundant.  The Tribunal did not accept the suggestion by the respondent witnesses that the reason for dismissal was simply redundancy and that there was no connection with the applicant’s disability.”

We must not be thought of as either approving or disapproving that approach.  We must leave it for an appeal where it is truly in issue.  We say no more about that aspect of the case.

3	The Remedies Hearing was on 23 June 1999 and, of course, it was before the same Tribunal at Hull, under the chairmanship of Mr J.M.Q. Hepworth.  The Decision was sent to the parties on 4 October 1999 and it was as follows:

“The unanimous decision of the Tribunal was that
1.  It orders the 1st Respondent to pay the Applicant the sum of £11,649 as compensation for unlawful discrimination.
2.  No award shall be made against the 2nd Respondent.
3.  The tribunal declares that the Applicant was unfairly dismissed by the 1st Respondent but makes no award of compensation in this respect.”

4	The Notice of Appeal is dated 13 September 1999 but was amended on 21 December.  It raises a number of discrete points and the first should be given the heading “Permanent Health Insurance”.  The point made here in the amended Notice of Appeal is as follows:

“(a)  The Employment Tribunal erred in law in coming to the conclusion that the Permanent Health Insurance afforded him in his contract of employment, was not a benefit that the Appellant had lost.”

5	The matter is chiefly one of construction of Mr Blowman’s contract of employment and also of the Company’s insurance provisions.  Mr Blowman’s skeleton argument (which is a credit to him, it is a well prepared argument) refers to Adin v Sedco Forex International [1997] IRLR 280, which refers to an employee’s Health and Pension Benefits being part of the overall remuneration package of the employee and not some form of charity on the part of the employer.  That, of course, is right but it does not mean one can escape the terms of the particular contracts in question in each separate case.  We have before us some, at least, of the relevant provisions and Mr Blowman rightly draws attention to Clause 7 of his terms and conditions which are headed “7. Sickness and Sickness Absence”:

“If you are unable to attend for work due to personal illness or injury, you should arrange for the Company to be notified before 9.00 am on the first day of absence.  Thereafter you should comply with the Company’s rules and procedure relating to absence through sickness.
Payment during sickness is made at management discretion according to the following scale for employees below normal retiring age.”

6	Then there is a table with, on the left “Length of Service” and then in the middle and not very well expressed, it says “Period and Amount of Company Paid in any 12 months”.  Below that there is another heading “Months at ‘make-up pay’” and then on the left-hand side one has “0-1 year, 1-5 years, 5-10 years and Over 10 years” and under the column “Months at ‘make-up pay’” one finds corresponding increasing figures “3, 6, 9 and 12”.  Continuing with that quotation one sees this:

“ ‘Make-up’ pay is salary at employee’s normal rate less statutory sick pay/social security benefits, and payment received under the Permanent Health Insurance Scheme included in the Company’s Pension and Assurance Scheme.”

7	Well, not the clearest of provisions but some features stand out.  First of all, such payment as there is is made at management discretion; it is not as of right.  The provision is not as clear as it might be but it is arguable that there is no payment after 12 months consecutive entitlement.  Thirdly, it is unlikely to be the case that an employee is to receive more when sick than when working and so the expression “Payment received under Permanent Health Insurance Scheme included in the Company’s Pension and Assurance Scheme” is likely to be a second kind of deduction from normal salary in order to compute what the “make-up” pay is at the time.  Fourthly, that provision, using the words “Payment Received” in the last paragraph that we have just cited, is consistent either with it being received by the employee direct from the insurance company or direct from somewhere, or by the employer receiving it.  In the latter case it could perhaps be argued that the employer, if the sum received from the Permanent Health Insurance Scheme is to be deducted in the computation of make-up pay, would be under an obligation, perhaps in trust, to pass it on to the employee.  But one does see that what it is necessary to do is to find what it is that is received by whomsoever under the Permanent Health Insurance Scheme included in the Company’s Pension and Assurance Scheme.  For that one goes on to Clause 9, which is headed “Pension and Assurance Scheme” and provides very simply:

“The Company operates a contributory Pension Scheme, full details can be obtained from the Financial Director.
Normal retirement age is 65 years for men and women.”

8	We do not have that contributory pension scheme, nor, as it would seem, did the Employment Tribunal, but we do have some policy details that would seem to relate to the Company’s Pension and Insurance Scheme in the sense that they seem to cover that part of it which provides the Permanent Health Insurance Scheme.  We find quotations from those and indications of what they are on our page 56, in answer to a question raised by Mr Bruce of the Company “What is the name of the policy?” one finds the answer:

“1.  The full name of the policy is the ‘Lumonics Ltd Permanent Health Insurance Scheme’.  This is a policy between Lumonics and Canada Life whereby Canada Life pay monies to Lumonics in the event of a claim enabling Lumonics to continue to pay the individual some level of pay.”

A little later, in answer to the question “How long does the policy pay out?” the answer was:

“6.  The policy pays until age 65, date of death if this is sooner or upon leaving employment.”

And in answer to the question “Will the policy continue to pay benefit in the event of unemployment?” the answer was:

“8.  Benefits are no longer payable if the person ceased to be employed.”

9	Then we have further details further on in our papers under the heading “Review of Prolonged Disability Insurance Specification for Lumonics Limited, 10 August 1999”.  It happens to be at our page 61:

“Definition of Disability
Totally unable by reason of sickness or accident to follow his/her own occupation and is not following any other."

And on our page 62:

“Continuation of Benefit Payment
The Employer does not require benefit payment to a claimant to be continued following termination of his service or following his early retirement under the pension scheme.”

10	If, then, for the purposes of Clause 7 of Mr Blowman’s terms of employment, it is necessary to find out what was the payment received under the Permanent Health Insurance Scheme mentioned in the Company’s Pension and Assurance Scheme within Clause 7 and if, in default of anything else being shown, the policy details which we have been citing are the relevant details, well then, first of all the money is paid to the Company (possibly in trust for the employee during his employment) but the Company no longer receives from the insurance once an employee’s employment has ceased and it is only paid where there is total disability as defined in the scheme.  Accordingly, on the facts of this case the Company would not receive over any period of real duration on Mr Blowman’s account as his employment had ceased and as, in any event, he was not within the definition of totally disabled within the appropriate definition.

11	It was the Company in a sense that lost a benefit rather than Mr Blowman.  Mr Blowman seeks to evoke some implied term in his favour in relation to the Permanent Health Insurance Scheme but the test for implying a term of a contract is a very stern one and also there would be great difficulty in precisely framing, as one is required to do of an implied term, exactly what it should be.  We do not see it as possible to imply any term that an employee or the Company should, under the Permanent Health Insurance Scheme, be entitled to receive some continuing benefit after employment and, of course, in any event the description of total disability meant that Mr Blowman was in a weak position.  It is difficult to imply a term given the express terms that the contract does so plainly include.  We add that Mr Bruce points out that in their computation the Tribunal did reflect that already at the point of dismissal Mr Blowman was in receipt of monies under the Permanent Health Insurance Scheme and took that into account in their computation.  On this subject the Tribunal held:

“There should be no compensation for loss of permanent health insurance.  The Tribunal accepted the submission by the Respondent’s representative that this was insurance taken out by employers to protect them in relation to employees sickness and was not therefore a benefit that the Applicant had lost.”

12	In our view that was correct and we find no error of law in this part of the Notice of Appeal.  The second heading should be “Calculation of Loss”.  In paragraph 6 (b), (c) and (d) of the amended Notice of Appeal there are raised a number of points in relation to how Mr Blowman’s loss was computed.  Mr Blowman had gone into business partnership with a colleague.  It started up in or about November 1998.  His representative below submitted that its earnings were being ploughed back into the business.  In evidence-in-chief (and we do not know in terms whether the Employment Tribunal accepted this or not) he had said (and this is recorded in the Chairman’s Notes):

“I met Steve Johnson, a former colleague, and we formed a partnership called Elite Technical Services.  This involved doing sub-contract work and we charged £8.50 an hour for services.  Any profit has all been used in getting the business together.  Our initial goal was to earn £400 a week, approximately making, therefore, £10,000 a year each.”

13	The complaint by Mr Blowman is that the Tribunal did not take into account or take into account sufficiently that profit was being reinvested in the business.  It is not entirely clear what Mr Blowman says the effect of taking it into account should have been.  If his new job yielded an income, as it plainly did, then that income, under the mitigation duty, is properly to be taken into account under his duty to mitigate his loss.  The income does not cease to mitigate his loss simply upon its being reinvested in the business any more than it would cease to be taken into account if he had lost it playing cards.  However, there does seem to us a possible point, indeed a real point in Mr Blowman’s favour in this area.  If (and one has to underline the word if) the money was reinvested (and there was, in fact, no finding to that effect) and if the new business thereby grew in profits, even over the relatively short term with which the Employment Tribunal was concerned, at a faster rate than otherwise would have been the case (and again, there is no finding as to that) then one could end up with an overall picture which was unfair to Mr Blowman.  An unfair picture would emerge if the Company was both credited with a deduction of, let us say, £X made to Mr Bowman’s primary loss of income to reflect the fact that he was earning money from the new business and if also, the Company was able to take the benefit of the faster predicted future profits of the new business generated or enhanced by reason of that £X being reinvested.  It is not clear to us for what reasons the Tribunal predicted exactly as they did in terms of the growth of the new business.  They may or may not have created the double benefit of which we have just spoken.  The Applicant is entitled to know what the predicted rate of growth taken into account was and how it was arrived at and he cannot do so from the terms of the Decision as it stands.  We cannot be sure whether this possible double accounting that we have mentioned needs to be taken out or not and the very fact that we cannot tell is a weakness in the judgment.  It could be said, on that account, to fall short of the standard that one finds in the familiar case of Meek v City of Birmingham District Council [1987] IRLR 250 and so that, in our judgment, is a point properly to be remitted to the Tribunal.

14	Next Mr Blowman challenges the Tribunal’s conclusion that the new business would soon be earning £40,000 per annum.  The amended Notice of Appeal says:

“Given the Appellant had disclosed during the Tribunal proceedings business accounts for the seven months leading up to the Remedy hearing, showing gross turnover to be approximately £14,000.  The tribunal speculated that a figure of £40,000 gross turnover would be made for the full year.  It is argued that this is a far too speculative and inaccurate approach to be taken in calculating compensation.”

15	Whether that was too vague or too speculative can only be judged by reference to the evidence which was given to the Tribunal and it does seem that this case is one in which only weak evidence was given in this area.  We have Chairman’s Notes on such a subject and he records in part of Mr Blowman’s cross-examination the following question and answer:

“Q:	What payments had been received by Elite Technical Services since it began in business?

A:	11/01/99 Payment £862.75.		1/2/99 Payment £2,318.	28/2/99 £2,405.50.
28/3/99   Payment £2,354.50.		2/5/99 Payment £3,183.25.	A further payment 
was received from another company of £2,500.”

16	Those figures come to some £13,600 odd, just short of £14,000.  That was on 23 June 1999, the business having started in or about 13 November 1998.  But that question was directed only to receipts, not earnings.  There is no mention there of work in progress, work almost completed, let us say, but not yet billed nor even of work completed and billed for but not yet paid.  Those would both be categories important in any assessment of a business and yet not covered by the question as to what payments had been received.  Nor do we know when the first profit-yielding steps were taken on the partnership’s behalf.  Mr Blowman did produce figures but the Tribunal would have been entitled to regard them, if it did, as inflating his losses or understating his earnings.  Indeed, the figures that he did produce neglected to ascribe any value to the income from his new business.  I say that in relation to his computation which is now at our page 45.

17	It really is a little unjust for parties to produce incomplete and inadequate figures for the Tribunal and then to complain that the Tribunal has been speculative or inaccurate.  The Tribunal, in the absence of reliable estimates based on past performance, had to do the best it could on the material laid in front of it.  They heard and saw Mr Blowman.  They could form some view of his confidence and his competence.  They had earlier held at the Liability Decision that he had been an excellent employee when he had been fit.  He had had this job of technical author specially created for him which surely reflected the confidence that his employer had had in him and his own competence.  The Tribunal, as an experienced and balanced panel, can be expected to be able to judge as well as anybody, especially given their experience of local conditions and local trades and skills, what the prospective earnings might be of any given start-up business.  It is also interesting, and it helps to reflect on any possibility of perversity, to see how far the Tribunal’s figures differed from the submissions of Counsel and of Mr Blowman’s own representative, both of whom who had, of course, heard the evidence.  The Respondent employer had said that it was right to deduct £170 a week on account of the new business’s profits.  Mr Shrimpton, Solicitor for the Respondents then argued:

“It is the Respondent’s contention that profits made by the Applicant’s new business should be set against any compensation awarded to the Applicant.  The Respondent believes that a reasonable amount of reduction relating to such business profits would be 20 hours x £8.50 [per hour] = £170 a week.”

But going on, the note of the Chairman continues:

“Miss Rodaway of Humberside Law Centre for the Applicant:
‘I accept that liability in compensation should lie with the First Respondent and not Mr Smith.  If the Tribunal finds it appropriate to deduct the Applicant’s earnings from his business from any compensation, the amount discounted should not be more than £130 net per week’…”

The Tribunal, in fact, said:

“In relation to the Applicant’s earnings from self employment the Tribunal estimated that in a period of 1 year from 13 November 1998 to 13 November 1999 the business would gross earnings in the region of £40,000.  These should be shared between the two partners in equal shares - £20,000.  The Tribunal estimated that half of that figure, £10,000, should be treated as net profit for the Applicant less 35% tax and national insurance deductions – the sum of £125 net per week.”

18	So the Employment Tribunal was therefore in the very bracket argued for and slightly more generous to Mr Blowman than his own representative had suggested might be appropriate.  It is easy to criticise the Tribunal’s figures as not fully explained but in any estimate of future earnings for a small business, barely out of the stable, it is bound to have a speculative element and when the only relevant evidence was such as it was here, then any estimate is bound to look as if it was rather plucked out of the air.  In the circumstances, and given the inherently speculative nature of the subject, we do not feel able to say that the finding, as described by the Tribunal, falls foul of the Meek v City of Birmingham test.  The very next sentence, though, in the paragraph 7 which we just quoted from, does give rise to a difficulty.  After mentioning £125 a week the Tribunal then said:

“The Tribunal accepted that this was a broad brush approach to calculation of loss but decided that, taking into account its duty to decide on a just and equitable basis, that this was the fairest and most equitable way of resolving a conflict between the Applicant and the Respondent.”

Section 123 of the Employment Rights Act 1996 subsection (1) provides:

“(1)  Subject to the provisions of this section and sections [and then there are a number of sections referred to], 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.”

19	There is the reference to just and equitable.  But, of course, this was not a case under that Act.  Under the Disability Discrimination Act 1995 the way damages or compensation is to be awarded is regulated by section 8 (3), which provides:

“(3)  Where a tribunal orders compensation under subsection (2)(b), the amount of the compensation shall be calculated by applying the principles applicable to the calculation of damages in claims in tort or (in Scotland) in reparation for breach of statutory duty.”

In that respect the Disability Discrimination Act formula is the same as that in the Sex Discrimination Act 1975, section 65(1)(b) and similar to the Race Relations Act 1976, section 56(1)(b).

20	It may be that the Tribunal addressed the computation here upon the proper basis and it may be that if they did not, even so, their answer would have been the same.  Their reference to the just and equitable basis might have been no more than an indication of their wish to be just between the parties, notwithstanding the paucity of evidence that was laid in front of them.  However, on the face of things, they have there used the wrong formulation.  They have addressed the wrong test for assessment of compensation and, on the face of things, that is an error of law.  It is, in our view, a second thing to be remitted to the Tribunal.  

21	Next, Mr Blowman complains of the Tribunal’s finding in relation to the period over which it thought he would suffer loss, given his new business partnership and its expansion.  They said:

“The unanimous conclusion of the Tribunal was that the Applicant’s future loss should not extend further than 13 November 1999.  The conclusion of the Tribunal was that the Applicant’s new business was prospectively an extremely successful one and it was unlikely that there would be further financial loss suffered as a result of the dismissal following that date.”

22	No evidence has been identified such that that conclusion could not properly have been reached.  True it is that later figures, not before the Tribunal and relating to periods after the Tribunal heard the matter, have been sought to be adduced by Mr Blowman but we have not allowed either side to refer us to them.  One does not disprove the estimate on a given day by producing evidence that was only available after that day and showing that the estimate did not come to pass.  Again, on this subject one can only comment on the paucity of the evidence laid before the Tribunal and the Tribunal, as the industrial jury, can be expected to have local knowledge and it expected the new business to be prospectively successful in the manner that the citation indicates.  That is a conclusion of fact in admittedly an inescapably speculative and somewhat hypothetical area but despite that the Tribunal had to come to a conclusion and did.  So long as the prospective success was not bolstered by ploughing back of earnings, as to which we have already made our observations, we do not see that there was any error of law (and, of course, we emphasise that it is only errors of law with which we can deal) that emerges in this part of the Notice of Appeal.

23	The next main heading of the Notice of Appeal is injury to feelings and what is said on that score is:

“The award of £2500 for injury to feelings on two counts namely the harassment suffered by the Appellant and the discrimination suffered by the Appellant, is grossly inadequate compared to similar awards.  It is argued that no reasonable tribunal would have reached such a decision.”

24	We bear in mind that the injury to feelings must only be compensatory - see section 8 (4).  It is not to punish the employer nor to set an example if doing either of those things would involve going beyond compensation properly-so-called.

25	The subject has come up recently in the Employment Appeal Tribunal in a decision of some length called Gbaja-Biamila v D H L International UK Ltd & Others (EAT/1224/98).  It is a case where the Appellant, Mr Gbaja-Biamila, had the support of the Commission of Racial Equality, who in turn instructed Mr Robin Allen QC.  It was decided on 10 February 2000.  It was a case of race discrimination but the principles are exactly the same.  We will need to return to that case Gbaja-Biamila but one has to notice some of the features of our particular case.  One has first got carefully to distinguish between injury to feelings and other forms of injury and between the ordinary symptoms of CFS or ME on the one hand, symptoms that might be unrelated to the unlawful discrimination and to the injury to feelings which has been caused by the unlawful acts which have been held to have taken place.  There has to be a causal link between the discrimination, on the one hand, and the injury to feelings on the other.  In that respect Mr Blowman draws our attention to a good number of findings that assist him.  Thus, the Tribunal says:

“The Tribunal found that the Applicant was mentally upset by the harassment of Mel Smith, and this affected him mentally and physically, making his symptoms worse than they would otherwise have been.  However, the Tribunal also concluded that the Applicant would have suffered similar symptoms (but less severe) if there had not been either the harassment or the dismissal by the Respondent.”

A little later:

“The Tribunal accepted the evidence of Dr Stanley [he did not, I think, give oral evidence but merely submitted a report] but did note that the doctor had not been consulted at the time of the Applicant’s symptoms but had first seen the applicant and produced the report for the benefit of the Tribunal remedy hearing.  He was, therefore, only able to give his opinion relating to the historical information provided to him by the Applicant.”

Then in subparagraph 6 on page 11 the Tribunal said:

“There were two elements of discrimination in this case:  the harassment by Mel Smith and the dismissal by the Respondent.  The Tribunal found that the discrimination was serious and had a serious effect on the Applicant.  However, the Tribunal found that the suggestion of £20,000 was unrealistic.  The Tribunal found that it should take into account that the Applicant presented himself in a particularly positive way in the Tribunal both at the full hearing and remedy hearing.  This suggested to the Tribunal members that the Applicant was well in the process of recovery from the symptoms of his illness.  In deciding its award on injury to feelings the Tribunal took into account the guidance given in the case of Armitage Marsden and HM Prison Service v Johnson [1997] IRLR that awards to injury to feelings are compensatory not positive, awards should not be too low as that would diminish respect for the policy of anti-discrimination legislation nor should they be so excessive as to be seen as untaxed riches.  Awards should be broadly similar to the range of awards in personal injury cases.  Tribunals should remind themselves of the value in every day life of the sum they have in mind.  Tribunals should also bear in mind the need for public respect for the level of awards made.”

We were also referred by Mr Blowman to passages in what the doctor said.  He said at 4.2 of his report:

“There was a significant deterioration in his symptoms at the times of stress from the harassment of his colleagues and the time of losing his job.  It is my opinion that the stress related to the harassment in 1996 played a significant part in the worsening of his condition leading to his prolonged sick leave in 1997.  However, given the lack of response to the stress management course and treatment with antidepressants it is likely he would have needed some time off work even without the extra stress of the harassment.  A period of 12 months sick leave is not unusual in CFS patients.”

Going back to the decision of the Tribunal, they said:

“The Tribunal read and considered a medical report on the Applicant by Dr P.J. Stanley dated 22 June 1999 [2 June 1999].”

And they then quoted the very paragraph that we have just read.  The doctor continued:

“Given the steady progress that he was making in 1998 before the stress of the dismissal and it is likely that the worsening of the CFS in 1998 was wholly due to this stress.”

And at paragraph 4.4:

“He has now improved again to the level he achieved in early 1998 and I would not expect any continuing effect due to the stress related to the harassment or dismissal.”

And finally, of these citations, the Tribunal said:

“He [Mr Blowman] complained to his line manager, Mel Smith.  As a consequence of this complaint his colleagues stopped making comments but Mr Smith continued to call him Joe Wickes or Wicksey on a regular basis.”

Interposing there, that is a reference to the character of Joe Wicks in the television programme, “EastEnders”, who was suffering from schizophrenia.  A little later the Tribunal said:

“This went on for a period of time and included the comment in December 1996 ‘Now then Joe you are not going to come to work with an axe one day and murder us all are you?’  The applicant did not complain directly to Mr Smith about his comments but they did upset him.  He thought he was being harassed because of his disability.  He did not complain to anyone in senior management.  Mr Smith continued to call him Joe Wickes into 1998 after there had been a confirmation in August 1997 that he suffered from chronic fatigue syndrome.”

26	All those, of course, represent findings of the Tribunal on material laid expressly in front of them and it can hardly be said that they did not have them in mind; they expressly refer to them.  It cannot be said that the Tribunal misdirected itself on the law.  Its reference to the Johnson case was entirely appropriate.  We mentioned earlier Gbaja-Biamila and there is a passage in that of relevance.  Under the heading “The proper approach to quantification of damages for injury to feelings”  which I think should read strictly “compensation for injury to feelings” one finds this:

“An appellate court, when reviewing the quantification of compensation by an Employment Tribunal, should not act as it would when reviewing an award of damages by a jury.   In contrast to a jury, the Tribunal is expected to give reasons and hence can be judged by those reasons - Skyrail Oceanic Ltd -v- Coleman [1981] ICR 864 at 872.   That is not to say that the Employment Tribunal’s sovereignty as to facts is here in question.   Only, firstly, if a Tribunal’s given reasons expressly indicate that it has adopted a wrong principle of assessment or, secondly (that not appearing by reason of its either correctly stating the principles or stating none) where it has arrived at a figure at which no Tribunal properly directing itself by reference to the applicable principles could have arrived, will the assessment demonstrate an error of law, the only class of error which this Appeal Tribunal can correct.   That second category may fairly be described as one where the award has been perverse, an award so high or low as to prompt in those aware of the relevant facts found and the applicable principles a reaction that the award was wholly erroneous, even outrageous - see also the collection of definitions of perversity in Stewart -v- Cleveland Guest (Engineering) Ltd [1994] IRLR 440 at 443.   In a case such as the one before us where it is only this second category which requires to be considered (as the principles were here correctly stated by the Employment Tribunal) the Employment Tribunal should be careful not to be seduced by a feeling that “They’ve given more (or less) than I think we would have done” or “That was rather on the low (or high) side” into the setting aside the award in question.   In this second category nothing short of perversity - a clear view that the award is wholly erroneous - enables the Employment Tribunal to interfere.   As the point is put in    North West Thames R.H.A. -v- Noone [1988] ICR 813 at 825 per May L.J.:-
‘The Appellate Tribunal should interfere only if the award by the [Employment] Tribunal is so out of the normal run that it can properly be described as a wholly erroneous estimate of the damage suffered by the complainant’.”

27	Gbaja-Biamila then turned to the ways in which one might seek to establish that sort of perversity; normally it is done in three ways.  First of all, there is comparison with other cases.  Secondly, statistics can be deployed and, thirdly, there are the personal injury guidelines produced by the JSB.  As for other cases, none is suggested as having actually been laid before the Tribunal other than the Johnson case but Mr Blowman refers us to an unreported case heard here at the EAT on 3 and 4 April 2000 called Tchoula v ICTS (UK) Ltd (EAT/1108/99).  One does not get a fair picture of cases generally from only one selected case and especially is that the position where in that case both the Employment Tribunal and the EAT held that the employer had been high-handed, malicious, insulting or oppressive towards the complainant, which expressions, although looking at the behaviour of the Respondent, lead to features not unlikely to have aggravated the injury to feelings on the part of the Applicant.  As for statistics, none seem to have been laid in front of the Employment Tribunal.  As for personal injury cases and the guidelines appropriate to them, Mr Blowman referred us, and the Tribunal below was also referred, to the 4th edition of the guidelines on the assessment of general damages and personal injury cases, which we need to cite from.  We have only an extract but it begins “Psychiatric Damage” which is then divided into “Psychiatric Damage Generally” and “Post-traumatic Stress Disorder” although the heading to both suggests that there may be cases where a given complaint falls into both categories.  On “Psychiatric Damage Generally” it says:

“The factors to be taken into account in valuing claims of this nature are as follows:
(i)	the injured person’s ability to cope with life and work;
(ii)	the effect on the injured person’s relationships with family, friends and those with whom he or she comes into contact;
(iii)	the extent to which treatment would be successful;
(iv)	future vulnerability;
(v)	prognosis;
(vi)	whether medical help has been sought.”

And going down from (a) “Severe”, (b) “Moderately Severe” one comes to (c) “Moderate” with a bracket of £3,000 to £9,000 and there it says:

“While there may have been the sort of problems associated with factors (i) to (iv) above there will have been marked improvement by trial and the prognosis will be good.”

And (d) “Minor” £500 to £2,250, thus there being a gap between £2,250 and £3,000:

“The level of the award will take into consideration the length of the period of disability and the extent to which daily activities and sleep were affected.”

That is all under heading (A).  Under heading (B) “Post-traumatic Stress Disorder”, it says:

“Cases within this category are exclusively those where there is a specific diagnosis of a reactive psychiatric disorder in which characteristic symptoms are displayed following a psychologically distressing event which was outside the range of normal human experience and which would be markedly distressing to almost anyone.”

And then there is further talk about the nature of the symptoms:  breathing, pulse rate and bowel and/or bladder control, that sort of thing, controlling temper, concentrating and sleeping and there one sees under the heading (c) “Moderate” £3,500 to £9,500:

“In these cases the injured person will have largely recovered and any continuing effects will not be grossly disabling.”

Under the heading (d) “Minor” £1,750 to £3,500:

“In these cases a virtually full recovery will have been made within one to two years and only minor symptoms will persist over any longer period.”

28	It is to be remembered that the Employment Tribunal was not compensating for Mr Blowman for his having CFS but for such injury to feelings as was occasioned by unlawful discrimination against him by the Respondents, either by themselves directly or by way of Mr Mel Smith.  It cannot be suggested, on the evidence, that Mr Blowman would not have had CFS but for the unlawful discrimination.  Moreover, by June 1999, importantly, the medical evidence according to the doctor was “I would not expect any continuing effect due to the stress related to the harassment or dismissal”.  That was a report of June 1999 based on an examination as at 27 May 1999.  The Appellant Mr Blowman complains of a reference that the Tribunal made as follows:

“The Tribunal found that it should take into account that the Applicant presented himself in a particularly positive way in the Tribunal both at the full hearing and remedy hearing.  This suggested to the Tribunal members that the Applicant was well in the process of recovery from the symptoms of his illness.”

29	He says, in effect, that that was over-optimistic view of his state because he was at the time on valium.  It is undoubtedly a little dangerous to rely on the appearance of things if there is no evidence otherwise to the same effect but here there was evidence, the evidence of the doctor of there being expected to be no continuing effects of the harassment or of the dismissal.  There was, in our view, no error of law in the Tribunal in allowing, as it seemed, that doctor’s evidence to be confirmed by their own eyes and ears and, in any event, if Mr Blowman’s impairment could be negated at will by the use of a relatively conventional tranquilliser, then surely that would be a feature leading to reduced injury to feelings, a feature which the Employment Tribunal would have been able to take account of, if only they had been told of it.  Reverting to principle then, as that Noone case supra said per May LJ:

‘The Appellate Tribunal should interfere only if the award by the [Employment] Tribunal is so out of the normal run that it can properly be described as a wholly erroneous estimate of the damage suffered by the complainant’.”

30	That, as a principle, remains a good one even though since that Noone case the cap on damages has been lifted.  The Tribunal saw and heard Mr Blowman in a case that, taking both Liability and Remedy Hearings together, was spread over some four days.  They saw him give evidence and be cross-examined.  They had the doctor’s report that he, the doctor, would not expect any continuing effects due to stress-related to the harassment and the dismissal.  They were able to take note also of the very late date at which Mr Blowman had complained of the harassment.  They had to reflect that the CFS was not said to be or proved to be caused by the unlawful discrimination.  For injury to feelings they settled on £2,500 and they settled on it unanimously.  That is in comparison with post-traumatic stress disorder in a personal injury case where, under the table to which we have made reference, the whole of the suffering of the plaintiff would in the ordinary way be laid at the defendant’s door.  Here, of course, a degree of Mr Blowman’s discomfiture was caused by the condition rather than by the discrimination.  Discrimination served to make it worse.  In comparison with the “Minor” category, there was here a relatively early recovery.  The “Minor” category spoke of “a virtually full recovery will have been made within one to two years”.  In comparison with Psychiatric Damage generally the award was in the gap between the description of “Minor” which went to £2,250 and the beginning of the “Moderate” bracket at £3,000 and, again, it is to be reflected that those are cases where the whole of the plaintiff’s loss would be attributable to the activity of the defendant.

31	We do not feel able to say that the Tribunal’s award was here so out of the normal run that it can properly be described as a wholly erroneous estimate and we have to bear in mind, as Mr Bruce emphasised, that we cannot hope to be as well placed as was the Tribunal which had the great benefit of having seen and heard Mr Blowman over a period, as they did.  So we detect no error of law in the award of injury to feelings.  That leaves only one part of the Notice of Appeal where in paragraph 6(f) it reads:

“The Employment Tribunal erred in law when calculating the accrued interest for the injury to feelings award.  The Tribunal calculated the accrued interest from the date of the actual dismissal.  It is argued that the date from which the accrued interest should have been calculated, is from the date of the actual discrimination, namely the date from which the harassment occurred December 1996.”

32	The Respondent does not resist the appeal on this ground in principle and we allow the appeal to that extent.  Interest will have to be calculated afresh.  Gathering all these strings together, three things need to be considered afresh by the Employment Tribunal.  We shall remit to the same Tribunal as before.  In order to have a meaningful remission we allow the appeal to the extent of setting aside such of the Remedies Decision as did not involve loss from the Permanent Health Insurance, Injury to Feelings and Interest on Compensation for Injury to Feelings.  Other subjects which have not been appealed against, of course also, remain as they were.  

33	We do not either suggest or require that the Tribunal to which this is remitted entertains fresh evidence but rather that it is to be enabled to hear fresh argument based on the evidence already heard.  Two particular areas will need attention and they are these.  They are consequential on the remarks we have already made.  If and to the extent that the remitted Tribunal finds that Mr Blowman did reinvest income from his new business in that new business then the Tribunal will need to look into whether there has been some form of double counting over-favourable to the employer in, firstly, deducting from Mr Blowman’s prima facie claim the income which he was receiving, or expecting to receive from his new business, and at the same time, treating the profits and expected profits of that business on a basis as they would be if the same money continued to be and had been ploughed back into it.  If there is any such double counting present then the Tribunal must re-compute their figure for Mr Blowman’s compensation as it would be taking out that double counting.  That is one subject.

34	The other is this.  Given that the “just and equitable” provisions of the Employment Rights Act can or may differ from the “claims in tort” basis applicable under the Disability Discrimination Act, what figure would the Tribunal settle upon if addressing itself only to the claims in tort basis, which is the correct basis.  Those are two particular subjects which will need attention.  The Tribunal is thus to arrive at figures which can be said to be without any form of double counting and which are on the “claims in tort basis”.  Whether and, if so, how far such figures will differ from those already found will be entirely a matter for the Tribunal which will, of course, be aware that, even in this inevitably somewhat less than definitive area of the estimation of future profits from a start-up business, the test in Meek v City of Birmingham though, no doubt, qualified to take account of the area in question, should still be complied with as far as possible.

35	The third thing and last thing to mention is interest.  It has to be re-computed in the light of the appeal on that subject which we have allowed against no opposition.  That also requires no new evidence, only argument and computation based, so far as necessary, on facts already found.  If the parties are able to agree one or more start dates for the running of interest and agree also appropriate rates, then the Tribunal should be told of that, but otherwise, if there is no agreement, that subject, too, will have to be dealt with at the remitted hearing.

36	So we allow the appeal in that limited way and remit to the same Tribunal as before in the way that we have indicated.