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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> O'Donoghue v Redcar & Cleveland Borough Council [2001] EWCA Civ 701 (15 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/701.html Cite as: [2001] IRLR 615, [2001] EWCA Civ 701, [2001] Emp LR 711

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT
APPEAL TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 15th May 2001

LORD JUSTICE POTTER:

This is the judgment of the Court, largely prepared by Bennett J.

INTRODUCTION

1. On 24^th, 25^th, 26th and 27^th January 2000, the Employment Appeal Tribunal heard appeals by the appellant and the respondent from three decisions of Industrial Tribunals sitting in Middlesborough. On 17^th May 2000, the Employment Appeal Tribunal delivered their judgment. The respondent was successful; the appellant was not. The appellant now appeals from the decision of the Employment Appeal Tribunal.
2. The short facts are these. Miss O'Donoghue is a barrister. In 1989 she was employed by the Langbaugh Borough Council in their legal department. As a result of local government reorganisation, which was to take place on 1 April 1996, that council was transformed into the Redcar and Cleveland Borough Council, the respondent. On 12^th October 1995, Mr Hayes, the Director of Law and Administration, told the staff of the new structures. Mr Richard Frankland became Mr Hayes' deputy. A new post of Senior Solicitor was to be created.
3. On 10^th November 1995 that post was advertised internally and was re-advertised internally on 8^th December. On 20^th December 1995 the appellant applied for the post. She was the only applicant but was not short-listed. In March 1996 the council again advertised, this time externally. The appellant applied and was short-listed. On 20^th March 1996 six people were interviewed including the appellant and Mr Cookson. The interviewing panel comprised Councillors Davies (Chairman), Jeffrey, Roberts, Szintai, Kay and Tombe. Mr Frankland was in attendance. Mr Cookson, one of the applicants was the successful candidate. If Mr Cookson did not accept the post, it was to be offered to the appellant. Mr Cookson accepted the post of Senior Solicitor.
4. On 29^th March 1996 the appellant in Form IT.1 complained of sex discrimination i.e. that in January 1996 she had not been short-listed despite being the only applicant. On 4^th June 1996 the appellant lodged a second form IT.1 claiming that she had been sexually discriminated against in relation to the appointment of 'a male applicant who was less well qualified and had less experience relevant to the post in question than I', i.e. Mr Cookson.
5. Those two complaints were heard by an Industrial Tribunal sitting in Middlesborough from 2^nd to 5^th of September 1996 inclusive. On 13^th November 1996 the Industrial Tribunal decided that the appellant failed in relation to the first claim but succeeded in relation to the second. The appellant did not appeal against the Industrial Tribunal's decision in relation to the first claim. On 19^th December 1996 the respondent lodged a Notice of Appeal against the decision in the second claim. We call this appeal 'the Discrimination Appeal'.
6. After the hearing in September 1996 the respondent suspended the appellant and started disciplinary proceedings against her. On 26^th September 1996 the appellant was dismissed. On 3^rd October 1996 she lodged Form IT.1 claiming victimisation under the Sex Discrimination Act 1975 and unfair dismissal.
7. On 30^th October 1997 an Industrial Tribunal, differently constituted from that in September 1996, began hearing these claims. It sat for 35 days between then and April 1998. The appellant gave evidence in chief for some 2 days and was cross-examined for 17 days. On 10^th July 1998 the Industrial Tribunal upheld both the appellant's claims of victimisation and unfair dismissal, but also held that she would in any event have been fairly dismissed by no later than 26^th March 1997, i.e. six months from the effective date of her dismissal namely 27^th September 1996. On 1^st September 1997 the appellant appealed that decision. We call this appeal 'the Victimisation and Unfair Dismissal Appeal'.
8. Over two days in September 1998, the same Industrial Tribunal heard her evidence in relation to her remedies. On 16^th November 1998 the Industrial Tribunal awarded the appellant in respect of her successful claim for victimisation and unfair dismissal in September 1996, £8,805.64, of which the sum of £2,000 was awarded as compensation for injured feelings. On 13^th December the appellant lodged an appeal against that decision. We call this appeal 'the Remedy Appeal'.
9. These three appeals were heard by the Employment Appeal Tribunal in January 2000. By their decision in May 2000, the Employment Appeal Tribunal allowed the Council's appeal in the Discrimination Appeal. The Employment Appeal Tribunal dismissed the appellant's appeals in the Victimisation and Unfair Dismissal Appeal and in the Remedy Appeal. On 17^th August 2000, permission to appeal all three decisions of the Employment Appeal Tribunal was given by this court to the appellant.

The Discrimination Appeal

10. The appellant has not sought to challenge the decision of the Industrial Tribunal in relation to alleged sexual discrimination arising out of her not being short-listed in January 1996. In relation to the decision of the Industrial Tribunal that she was the victim of sexual discrimination as a result of the appointment of Mr Cookson, she seeks in this court to have the decision of the Employment Appeal Tribunal reversed and the decision of the Industrial Tribunal restored.
11. The result of the further advertisement in 1996 was that nine people, six males and three females, applied for the post of Senior Solicitor. The task of short-listing was delegated by Mr Hayes to Mr Frankland. Mr Frankland and Councillor Jeffrey carried out that task marking a grid prepared by Mr Frankland. Four candidates were selected for interview. Mr Frankland then suggested adding Mr Cookson. Councillor Jeffrey suggested that if his name was added, so too should the name of the appellant. Mr Frankland agreed.
12. The interviews took place on 20^th March. Each person was interviewed for twenty minutes. The Industrial Tribunal said in their Extended Reasons:

"49. The Tribunal had the advantage of hearing evidence from each of these. Mr Frankland was also in attendance. Fortunately the contemporary notes of the Councillors and Mr Frankland have been retained and were produced at the hearing. Unfortunately no note at all was kept of discussions which followed the candidate interviews apparently because there was no-one available from the personnel department to take such notes. However, it is probably fair to say that from the evidence there appeared to have been two "parties", one which preferred Mr Cookson and the other the applicant. However, after Mr Frankland had spoken and there had been some discussion about the difficulties which some council staff had in getting on with the applicant, there was a clear majority in favour of Mr Cookson. Nevertheless it was agreed that, if Mr Cookson did not take up the appointment, then the applicant was to be the reserve candidate".

13. As we have said, Mr Cookson was chosen for the post of Senior Solicitor in preference to the appellant. In that respect the Industrial Tribunal found that the appellant had been discriminated against in the following circumstances. As stated in their Reasons:-

"10. For the record, the applicant drew the attention of the Tribunal to 'sexist' remarks made by Councillors Roberts and Davies in 1993 in the Labour Group Room. She noted these remarks at the time (exhibit A129). The Councillors did not deny that such remarks may have been made, but they suggested that they were banter following extreme feminist remarks made by the applicant.

11. Also it is clear from the exhibits that, whilst the Council clearly has an Equal Opportunity Policy (exhibit A62-74), it has not been actively implemented and a great deal remains to be done as conceded in the Council's letters of 17^th May 1994 and 12^th July 1996 (exhibits A132 and 135). These show that there has been no monitoring of the ethnic or gender profiles since the inception of the E.O.P. in June 1991 despite the policy's requirement of monitoring nor has there been any review although one was put in hand a week after the council replied to the applicant's second questionnaire under Section 74 of the Sex Discrimination Act."

14. The 'sexist' remarks were noted by the appellant in her diary shortly after they had occurred in late December 1993 or thereabouts. She recorded Councillor Roberts as saying, "there are too many women in these council offices" and "we don't want them to be hard, we want them to be soft". She recorded Councillor Davies as saying "the women here don't want to be Chair, they don't want to be on (the) Policy and Resources (Committee). They prefer the men to do it". She also recorded Councillor Roberts as saying "There should be polygamy – four or five wives each and they should each have their tasks – I haven't been in a kitchen for fifteen years. I remember there are two taps and a washing up bowl…."
15. The Industrial Tribunal's reasons for finding in favour of the appellant were set out as follows:

"16. Her claim in respect of Mr Cookson requires more consideration. Thus, whilst neither he nor the applicant had much experience in managing legal staff, only the applicant had the three years of operational experience at senior level required by the Job Summary. On the other hand, whilst the applicant's experience was longer than that of Mr Cookson, and more clearly related to the supervision required in the post for which they applying, Mr Cookson was thought by the panel to have a wider experience and, unfortunately for her, but not improperly, the panel's attention was drawn to alleged difficulties which the applicant had with other members of the staff which was not unknown to some of the panel. The applicant stressed that such comments and complaints as may have been made had not led to any disciplinary action against her. She also stressed that, so far as she could tell from the evidence of the witnesses and such interview notes as were available, she was the candidate favoured by the majority of the interviewing panel at the conclusion of the interviews and the reason why the majority swung to Mr Cookson thereafter was because of the interventions of Mr Frankland. This may well be the case, but it does not necessarily indicate any impropriety in the panel's ultimate choice. We do not think that such choice can be challenged unless there is some evidence of sex discrimination.

17. In this respect the applicant cites three relevant matters. The first of these is the fact that the interviewing panel included a Councillor whom she had prosecuted in the Magistrates Court a few years ago for non-payment of community charge. Prima facie this would appear unwise but the Councillor concerned, Councillor Jeffrey was a good witness and we consider it to be unlikely that he was in any way prejudiced. The second matter concerns the clear evidence that, whilst the council had a nominal Equal Opportunity Policy, the evidence demonstrated in the exhibits shows that it had done precious little to implement the policy. Finally, there is the third matter of the discussion in the Party Group Room in 1993 between the applicant and Councillors Davies and Roberts and the sexist language of the two councillors recorded by the applicant at the time. The Councillors say that such remarks were banter, triggered by feminist comments from the applicant. This may well have been the case, but their recorded comments are clearly not acceptable bearing in mind that the applicant was, in effect, an employee of the councillors.

18. Nevertheless, having heard all the evidence and considered the exhibits, the Tribunal agree that the actions of both the applicants' seniors in her department and of the Councillors on the interviewing panel were affected not only by Mr Frankland's advice that the applicant was not an easy person to work with or good with staff but also by the applicant's strong feminist views which she had freely expressed over a period of years. It can truly be said that the applicant would "not have been treated in the way in which she was but for her sex". We find that she was discriminated against on the grounds of her sex.

19. In reaching this conclusion we have borne in mind Knox J's reference in Nagarajan v Agnew [1994] IRLR 61 to the decision of the Court of Appeal in Owen & Briggs v James [1982] IRLR 502:

"Where an Industrial Tribunal finds that there are mixed motives for the doing of an act, one or some but not all of which constitute unlawful discrimination, it is highly desirable for there to be an assessment of the importance from the causative point of view of the unlawful motive or motives. If the Industrial Tribunal finds that the unlawful motive or motives were a sufficient weight in the decision-making process to be treated as a cause, not the sole cause, but as a cause, of the act thus motivated, there will be unlawful discrimination."

16. The Employment Appeal Tribunal were critical of the Industrial Tribunal's reasoning and conclusions. At paragraph 53 of their judgment the Employment Appeal Tribunal said:

"53. …. In our judgment the conclusion in paragraph 18 was not a conclusion which was a permissible option on the evidence that was, to judge from the material we have, given to the Tribunal. There was not enough found as matters of primary fact nor such an analysis of causation to justify the holding that the applicant 'would not have been treated in the way she was, but for her sex'' On the facts of this case, that conclusion represented more of a speculative leap than an answer that could have been reached on the law and on the evidence."

17. The Employment Appeal Tribunal then went on to consider whether or not the matter should be remitted to a differently constituted Tribunal, but decided in the end that they had sufficient material upon which they could allow the appeal and reverse the decision of the Industrial Tribunal.
18. The Employment Appeal Tribunal said with reference to paragraph 18 of the Industrial Tribunal's extended reasons:

"48. It is notable that neither singly nor in combination the "three relevant matters" which Miss O'Donoghue had urged as evidence of sex discrimination against her have proved sufficient to lead to the finding in her favour. That may of course raise the point that the ground eventually relied upon by the Tribunal was one which had not been argued. That is not the only weakness in the route used by the Tribunal to get to its conclusion.

49. Mr Bloch composes a powerful cumulative list of shortcomings. None of the interviewing Councillors, all of whom gave evidence, had it put to him (as to those other than Roberts and Davies) that he knew of the 'banter' instant some 2¼ years before and there was (as the Chairman's answer cited above indicates) no express reference in the Notes of Evidence to the effect of Ms O'Donoghue's views (as then expressed more generally) on those Councillors or even on Councillors Roberts and Davies. There was (as, again, the Chairman's answer indicates) no express reference in the notes to the effect that Ms O'Donoghue's views had on Mr Frankland (one of her seniors). Mr Frankland doubtless did hold and express the view that Ms O'Donoghue was not an easy person to work with or good with staff but there was no express reference in the evidence that in coming to that view (manifestly justified by the evidence as a whole) he had been affected by Ms O'Donoghue's strong feminist views. It is a serious matter to describe a Councillor, who depends for his office on public election, as guilty of sex discrimination in the course of his public duty but there is in the Extended Reasons no assessment, councillor by councillor, as to whether each respectively even knew of Ms O'Donoghue's views, let alone been affected by them in the course of the selection process. Councillors Roberts and Davies had, of course, heard her 'extreme feminist views' at the 'banter' instant 2¼ years before but, that apart, there are no findings as to which councillors heard her express or heard of her expressing what views. There can hardly be any entrenched prejudice against Ms O'Donoghue as it was her own case that at the conclusion of the interviews, before Mr Frankland's intervention, the majority was in her favour. Yet the Tribunal apparently held all the Councillors on the panel to have been effected as paragraph 18 of their decision describes. So also it would be wrong to hold a senior Council officer such as Mr Frankland to have been guilty of sexual discrimination and it cannot be right, says Mr Bloch, against the absence of express evidence, as indicated by the Chairman's answer, for the Employment Tribunal to have held as it did.

50. The Tribunal, he added, indicated a degree of confusion by its reference to 'the applicant's seniors' as her other senior, Mr Dobson, played no part whatsoever in the interviewing panel or in the selection process at all and to have held him, as it seems, to have been effected in his actions by Ms O'Donoghue's strong feminist views, was not only a finding without any express evidence to support it, but was totally irrelevant."

52. It may be added that to hold that the appointing panel were "affected" by Miss O'Donoghue's views does not suffice in law where there are other reasons operating such as, here, that she was not an easy person to work with or good with staff. Although Nagarajan v London Regional Transport [1999] IRLR 572 HL deals primarily with victimisation on racial grounds, it is proper to expect the "significant influence on the outcome" to which Lord Nicholls refers in paragraph 19 of that decision to be required in a broader class of cases, including the case before us. The Tribunal was alive to the need to make an assessment of the importance from a causative point of view, of the particular motives operating during the selection progress; in their paragraph 19 they quote a passage to such effect from Nagarajan v Agnew [1994] IR LR 61 extracted from Briggs v Jones [1983] IR LR 502. However, the Tribunal (having already held that it might well have been Mr Frankland's intervention that had swung the majority, not improperly, to Mr Cookson) appears to have made no assessment of the relative significance of the influence of Ms O'Donoghue's strong feminist views on the decision to appoint Mr Cookson. There is no express holding that the strong feminist views became a significant influence on anyone's decision as to selection, still less that they operated to such effect on all or on at least a majority of the appointors or on Mr Frankland. Moreover, we are entitled to doubt that a reaction against "strong feminist views" is of itself an indication of the presence of sexual discrimination. Quite apart from the fact that, in a situation in which teamwork was demanded, it might have been that it was against the expression of strong views of any underlying potentially divisive nature that objection was taken, it might be added that it by no means follows that only a woman can hold or express strong feminist views. Discrimination against a woman as the express or feminist views is thus not necessarily discrimination on the grounds of her sex.

53. Mr Bloch took us to Chapman and another v Simon [1994] IR LR 124 128 where Lord Justice Balcombe says:-

"In order to justify an inference, a Tribunal must first make findings of primary fact from which it legitimate to draw the inference. If there are no such findings then there can be no inference: what is done cannot best be speculation. There are no primary facts mentioned by the majority of the Industrial Tribunal as justifying their inference that "subconsciously or unconsciously" (Ms Chapman) was affected …"

19. At Page 129 of the same case, Lord Justice Peter Gibson adds:

"A mere intuitive hunch, for example, that there has been unlawful discrimination is insufficient without facts being found to support that conclusion."

20. It is our view that it is of prime importance to ascertain first what evidence the Industrial Tribunal had in front of them. The Employment Appeal Tribunal was hampered in this respect in that the respondents (who were the appellants in a Discrimination Appeal before the Employment Appeal Tribunal) had failed to obtain the notes of evidence taken by the chairman of the Industrial Tribunal. In April 1999 it was suggested by the Employment Appeal Tribunal at a hearing that the parties should attempt to agree what the evidence had been on any relevant topic. That was not done. At the hearing in January 2000, the Employment Appeal Tribunal said that it was difficult to see how justice could be done to the respondent's argument without the Chairman's notes. The Chairman's notes were obtained during the hearing. A memorandum, the questions in which were drafted by Counsel, was placed in front of the Chairman. The questions and answers appear at pp.44 and 45 of our bundle. Neither party asked for the Chairman's notes of evidence to be transcribed.
21. It is apparent that the appellant gave evidence and called as her witnesses four of the six interviewing Councillors. The respondents called the remaining two councillors and Mr Hayes and Mr Frankland. Mr Bloch Q.C., for the respondents has submitted that although there was evidence of the conversation in December 1993 (paragraph 15 above), there was no evidence that the appellant's "strong feminist views" had been "freely expressed over a period of years" (see paragraph 18 of the Industrial Tribunal's Extended Reasons). We disagree. Although the Chairman of the Industrial Tribunal in the Memo acknowledged that "on a quick re-read" of his notes there was no express reference to the appellant and her strong feminist views, the Chairman did draw attention to the following exchange in the evidence of Councillor Roberts about the conversation in December 1993:

"Q. Your recollection of the conversation?

A. A few like this. She often had extreme views and we replied in like terms.

Q. Her views?

A. She spoke of automatic rights for womans' plans. This had been our view for either male or female. I could have made remarks but light hearted. Margaret had extreme views."

22. In that exchange Mr Roberts is acknowledging that the appellant often expressed her extreme views and that her expressions were not confined to the meeting in December 1993. The tenor of that evidence is that her expressions of feminist views and the riposte of male councillors continued both before and after December 1993. Indeed that seems to us to accord with reality. It is highly unlikely that this appellant, having expressed her views by December 1993, would suddenly desist from continuing to express them and equally unlikely that councillors would have stopped making their ripostes.
23. We do not accept the criticism made by the Employment Appeal Tibunal of the Industrial Tribunal that there was no assessment, Councillor by Councillor, whether each of them knew of the appellant's views. Each of the interviewing Councillors gave evidence and each was cross-examined. The Industrial Tribunal having heard them and considered their evidence concluded that the majority (at the very least) of Councillors who in the end decided in favour of Mr Cookson, were in so doing "affected….by the applicant's strong feminist views which she had freely expressed over a period of years". We do not accept Mr Bloch's submission that the Industrial Tribunal's findings were, to use the words of Lord Justice Peter Gibson, "a mere intuitive hunch".
24. Mr Bloch further submitted that the Industrial Tribunal had found that the reason why the interviewing Councillors had swung from being in favour of the appellant to being in favour of Mr Cookson was the "not improper" intervention of Mr Frankland. He cited the decision of The House of Lords in Zafar v Glasgow City Council [1998] RLR 336, in particular the House's approval of the dicta of Neill L.J. in King v Great Britain – China Centre [1991] RLR 513, 518 where he said (in a racial discrimination case):

"From these several authorities it is possible, I think, to extract the following principles and guidance:

……..

(4) Though there will be some cases where, for example, the non-selection of the appellant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances, the tribunal will look to the employer for an explanation. If no explanation is then put forward, or if the tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate of the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law, but as May L.J. put it in Noon, "almost common sense"." (emphasis added)

25. Mr Bloch submitted that the Industrial Tribunal, far from rejecting the "explanation" of why the panel swung in favour of Mr Cookson, stated that his intervention was "not improper". He submitted that the explanation was a good explanation, and thus it was not open to the Industrial Tribunal to find sexual discrimination.
26. We are not so persuaded. The Industrial Tribunal, in our judgment, correctly directed itself in accordance with the passage in the judgment of the Employment Appeal Tribunal (presided over by Knox J.) in Nagarajan v Agnew & Others [1994] IRLR 61, paragraph 45, which the Industrial Tribunal set out at paragraph 19 of its decision. The Industrial Tribunal were clearly of the view that the panel, in arriving at their decision to appoint Mr Cookson, were actuated by mixed motives, i.e. Mr Frankland's "not improper" advice and by the appellant's strong feminist views expressed over a period of years. That was a conclusion of fact by the Industrial Tribunal for which there was evidence as we have set out. Having heard almost everyone on the panel, the Industrial Tribunal were not satisfied that the sole reason for the panel's decision was Mr Frankland's advice; it was a mixture of two reasons and the unlawful reason was of sufficient weight to be treated as a cause of Mr Cookson being preferred to the appellant.
27. Mr Bloch referred us to the decision of this court in Anya v University of Oxford & Anor. [2001] EWCA CIV 405 decided on 22 March 2001. We would wish respectfully to agree with a passage in the judgment of the court at paragraph 26, part of which is particularly appropriate to the instant case:-

"….. the courts have repeatedly told appellants that it is not acceptable to courts to comb through a set of reasons for hints of error and fragments of mistake, and to try and assemble these into a case for oversetting the decision……. Just as the courts will not interfere with a decision, whatever its incidental flaws, which has covered the correct ground and answered the right questions, so they should not uphold a decision which has failed in its basic task, whatever its other virtues."

28. The question here is where this case stands in the spectrum. In our judgment it cannot be said that the Industrial Tribunal failed in its basic task; it asked the right questions and there was evidence to support its conclusions. The appellant's appeal will therefore be allowed and the decision of the Industrial Tribunal restored.

The Victimisation and Unfair Dismissal Appeal

29. The Decision and Extended Reasons of the Industrial Tribunal reveal that the unanimous decision of the tribunal was:-

(1) that the respondents unlawfully discriminated against the appellant, contrary to Section 6(2)(b) of Sex Discrimination Act 1975, by way of victimisation within the meaning of Section 4 of that Act;

(2) that the appellant was unfairly dismissed;

(3) that the appellant's dismissal was not caused or contributed to by any action on her part; but

(4) that the appellant would in any event have been fairly dismissed by the end of the period of six months after the effective date of termination of her employment, namely is 27^th September 1996.

30. The respondents did not seek to challenge before the Employment Appeal Tribunal decisions (1), (2) or (3). The appellant, however, did challenge decision (4), but was unsuccessful. She seeks to persuade us that the Industrial Tribunal were wrong. Between paragraph 8 and sub-paragraph 9 (qqqq) of their decision the Industrial Tribunal set out their principal findings. Ms Gill, for the appellant, told us that she did not seek to challenge any of those findings of fact. It is apparent from the Industrial Tribunal's reasoning that they closely examined the facts from 1989 onwards.
31. The Industrial Tribunal was highly critical of both the appellant and the respondents. The Industrial Tribunal closely analysed the immediate circumstances surrounding the appellant's dismissal at the end of September 1996. They concluded that Councillors Roberts and Davies had been extremely upset by being cross-examined at the hearing in front of the first Industrial Tribunal in early September 1996 about the remarks they had made of the appellant in 1993. Those remarks had got into the local newspapers. The Industrial Tribunal found that Councillors Roberts and Davies were humiliated by that coverage. They were extremely angry at the appellant.
32. On 11^th September 1996 Solicitors acting on behalf of the appellant asked the respondents to provide details of the result of the further investigations to which the letter of suspension of the appellant had referred. On 12^th September Mr Kilburn, the Chief Executive of the respondents, wrote a letter to the appellant setting out four "areas of concern" about the appellant's behaviour and attitude. It was at about this time that Mr Kilburn instructed Ms Langridge to advise him in relation to the disciplinary proceedings and the hearing which she was to attend. At the hearing in front of the Industrial Tribunal Ms Langridge's role as advisor was the subject of much criticism by the appellant.
33. The Industrial Tribunal found that such criticisms lacked any proper basis. The Industrial Tribunal said:-

"The Applicant's repeated suggestion to us that Ms Langridge had a "commercial interest" in her case – by which she meant, and said in terms, that Ms Langridge had a financial stake in there "not being a happy ending" but instead the dismissal of the Applicant and her own instruction at another Tribunal hearing – was a deliberate, gratuitous and grossly offensive slur which said a great deal about the Applicant and her "no holds barred" approach to argument."

34. The disciplinary hearing was held on 26 September 1996 before Mr Kilburn, Ms Langridge being present. The appellant was represented by solicitors. The Industrial Tribunal found that before the hearing began Mr Kilburn had made up his mind, not only about matters which he sought to raise, but also about the outcome of the hearing namely, that the appellant was to be dismissed. The Industrial Tribunal found that Mr Kilburn showed no interest whatsoever in anything that was said on behalf of the appellant. They found that he was effectively "the prosecutor and the judge (emotive though that phrase may be) but was also the person who had decided upon disciplinary proceedings, had caused the Applicant to be suspended and had purportedly investigated matters (although he did not include the Applicant in any investigation)." The appellant was dismissed the next day on the grounds that she had broken the respondent's trust.
35. On 3^rd October 1996 the appellant presented her Form IT 1 complaining of unfair dismissal and victimisation to the Industrial Tribunal. In the meantime the appellant exercised her right of appeal to the staff appeals sub-committee and the hearing was fixed for 11^th November 1996. The Industrial Tribunal found that that hearing was unfair in a number of respects which the Industrial Tribunal set out in their extended reasons. No proper investigation was made by the Appeal Tribunal and the outcome, namely that her appeal was to be dismissed, was a foregone conclusion.
36. The respondent's case in front of the Industrial Tribunal was that the reasons for the appellant's dismissal were the four "causes for concern" listed in Mr Kilburn's letter of 12^th September 1996. At paragraph 11 of their extended reasons, the Industrial Tribunal said:

"As will already be apparent, we accepted much of the respondent's case with regard to the Applicant's personality in relationships with others, both within and outside the respondent, with whom she came into contact and with whom she had to work … In our view, a significant number of these complaints were justified. In many other cases where we could not say whether or not that was so, there were nevertheless some aspects of her behaviour which suggested an unacceptable attitude towards others. We accepted that in due course that would have greatly concerned Mr Kilburn whose approach to conflicts and divisions of this sort was (as was that of Mr Frankland) considerably more direct and less tolerant than had been the approaches of Mr Abigail (we interpolate, Mr Kilburn;s predecessor) and Mr Hayes. The new authority, with its much greater responsibilities and dependence upon teamwork, was not going to put up with the sort of conduct that had been relatively unchallenged in the past. Moreover, although strictly speaking the Applicant had never been given any form of warning, a number of complaints made to her by senior managers over the years had come very close to being that, in particular Mr Abigail's letter R2, 384-385."

37. The Industrial Tribunal then went on to be highly critical of Mr Kilburn and his conduct. Having carefully considered the matter the Industrial Tribunal stated their conclusion in paragraph 12 of their extended reasons:

"… taking into account all the facts of this case, that the matter which lay behind the suspension and then dismissal of the Applicant at the time when that actually took place was not the complaints of sex discrimination as a whole but the outrage and humiliation caused by the revelation of the diary note and the substantial and adverse publicity that ensued…. We noted that Mr Kilburn in his evidence sought to understand the extent of that publicity but it was clearly considerable. It concerned a matter that was politically sensitive and Mr Kilburn later called it "highly damaging". We took the view that those involved would have thought they had been made a laughing stock. The Councillors and others went to see Mr Kilburn. Councillor Jeffrey did not do so as he may have been personally unconcerned about the publicising of the prosecution 5 or 6 years earlier: however, for Mr Kilburn and others within the respondent that was an additional cause for complaint…. However, in our judgement, the principal factor which led to the Applicant's dismissal was the raising of the diary note before the Industrial Tribunal. We took the view that the likelihood was that other matters were then raised, discussed and brought into play to justify the action that was to be taken. That is not to say that the other matters would not have been brought up at some point in any event, a matter to which we shall return. However, but for the use of the diary note they would not have been brought up when they were."

38. The Industrial Tribunal rejected the respondent's case that as things were known to Mr Kilburn at that time the reason for the appellant's dismissal was that she had conducted herself so as to destroy the trust and confidence in the employment relationship. The Tribunal concluded that she had been dismissed because she had embarrassed members of the respondents by raising at the Industrial Tribunal remarks which those members had made some years before and, prima facie at least, were sexist. Those remarks were highly material to her case. There was no basis, the Industrial Tribunal said, for any assumption that the appellant knew all along that the remarks were humorous. Accordingly they found that the Applicant's dismissal was unfair. Furthermore, the Industrial Tribunal found that even had the respondent been able to establish a reason that fell within section 98(1)(b) of the Employment Rights Act 1996, they would still have come to the conclusion that the dismissal had been substantively and procedurally unfair. The Tribunal further found that the appellant had not contributed to her dismissal. Finally the Tribunal found that she had been sexually discriminated against.
39. The Industrial Tribunal went on to give their reasons for their decision (4). They were that, despite their decision (3), they accepted that the appellant's attitude towards her colleagues inside and outside the respondents was often unacceptable and gave rise to valid complaints about her. Her approach was divisive and antagonistic and was at odds with the teamwork which Mr Kilburn viewed as necessary for the organisation. It would inevitably have led to her dismissal within a further period of six months. Strictly speaking decision (4), as the Industrial Tribunal recognised went to the question of remedy. However, because the relevant issues had been raised and explained at length, the Industrial Tribunal sensibly thought it appropriate to make the relevant findings at that stage. The Industrial Tribunal said:

"19. We rejected the submission that this was a case in which, in relation to the complaint of unfair dismissal, the Applicant had contributed to the same. We found that the reason for her dismissal was a matter which amounted to victimisation, contrary to the 1975 Act. Other issues, such as relationships, played little if any part at the time at which dismissal was determined. On that basis, a finding of contribution was not appropriate. Moreover, this was not a case in which it could be said that a different procedure would have made no difference to the outcome: clearly the findings on the part of the respondent went very much further than mere matters of procedure. Having said that, the adversarial approach of the Applicant and the problems that that created could not properly be ignored. They gave rise to the question whether, in due course, irrespective of the Applicant's previous complaint to the Tribunal, they would have led to her dismissal in any event. We considered and rejected an assessment of the percentage risk. We came to the conclusion that at some point such a dismissal would have taken place. We were entirely satisfied that in time Mr Kilburn, aware of the substantial problems that the Applicant's attitude and approach were causing, would have attempted to deal with that effectively by warning the Applicant, that the Applicant was wholly incapable of ameliorating her approach and co-operating with colleagues as an integral part of a team and that the outcome would have been the Applicant's dismissal. That would have been "for some other substantial reason" and we accepted that, with matters relevant to the Industrial Tribunal hearing being removed from consideration, any hearing would have been much more open and the Applicant would have been properly prepared. That dismissal would have been fair. It would not have been tainted by discrimination on the grounds of sex: Mr Kilburn would have taken the view (for reasons which would have nothing to do with gender) that the fact that other officers had previously dealt with the incident did not preclude him raising them again, particularly as he would not have been reopening them as such. The Applicant submitted to us that, but for the previous Tribunal hearing, she would even now be working at her desk: that was a proposition with which we were quite unable to agree. The Applicant showed no insight into the problems that she was causing and we had no doubt she would have continued to behave in the same way. Mr Kilburn would not have put up with that. There remained a question of how long that would take, that is when the Applicant's employment would have been terminated in any event. We fully appreciated the relatively speculative nature of that question. However, it was clear to us that it would have happened sooner rather than later. Even by September 1996, the upheaval caused by local government reorganisation had settled down. Very soon Mr Kilburn would have been turning his attention to the Applicant, particularly with the assistance of Mr Frankland. Doing the best we could, we came to the conclusion that in any event the appellant applicant's employment would not have continued longer than, and she would have been fairly dismissed by, a date six months after the effective date of termination, that is 27^th September 1996. Effectively, in our view that amounts to a cut off point which the parties will bear in mind with regard to issues of remedy."

40. In considering this reasoning the Employment Appeal Tribunal did not read the Industrial Tribunal's conclusion as having been reached on the balance of probability, but on the basis that it was 100% likely that the appellant would have been thus dismissed. The appellant submitted to the Employment Appeal Tribunal that the Industrial Tribunal's decision (4) was perverse. The Employment Appeal Tribunal rejected that contention. They found that the Industrial Tribunal had carefully evaluated a great mass of evidence before it. It was the view of the Employment Appeal Tribunal that it was quite unrealistic for the appellant to argue that there was no basis for the Industrial Tribunal's view that she would certainly have been fairly dismissed within the 6-month period.
41. In this court, Ms Gill made three fundamental submissions. First, where an Industrial Tribunal has found that a dismissal was substantively (and not just procedurally) unfair, as it had been in the instant case, it was not open to the Industrial Tribunal to find that at a later date after the dismissal the employee would in any event have been dismissed fairly. Second and alternatively, the Industrial Tribunal had in this case wrongly rejected making an assessment of the 'chance' that at a date later than her dismissal she might have been dismissed fairly. Third, the decision that not later than 6 months after her (unfair) dismissal she would certainly have been dismissed (fairly) was perverse.
42. As to her first submission, Ms Gill relied upon the House of Lord's decision in Polkey v. A.E. Dayton Services Ltd. [1988] A.C. 142, and in particular upon a passage in the speech of Lord Bridge of Harwich at p. 163 where he said:

"My Lords, I think these conclusions are fully justified by the cogent reasoning of Browne-Wilkinson J. in Sillifant v. Powell Duffryn Timber Ltd. [1983] I.R.L.R. 91 to which my noble and learned friend the Lord Chancellor has already drawn attention.

"If it is held that taking the appropriate steps which the employer failed to take before dismissing the employee would not have affected the outcome, this will often lead to the result that the employee, though unfairly dismissed, will recover no compensation or, in the case of redundancy, no compensation in excess of his redundancy payment. Thus in Earl v. Slater & Wheeler (Airlyne) Ltd [1972] I.C.R. 508 the employee was held to have been unfairly dismissed, but nevertheless lost his appeal to the National Industrial Relations Court because his misconduct disentitled him to any award of compensation, which was at that time the only effective remedy. But in spite of this the application of the so-called British Labour Pump principle [1979] I.C.R. 347 tends to distort the operation of the employment protection legislation in two important ways. First, as was pointed out by Browne-Wilkinson J. in Sillifant's case, if the industrial tribunal, in considering whether the employer who has omitted to take the appropriate procedural steps acted reasonably or unreasonably in treating his reason as a sufficient reason for dismissal, poses for itself the hypothetical question whether the result would have been any different if the appropriate procedural steps had been taken, it can only answer that question on a balance of probabilities. Accordingly, applying the British Labour Pump principle, if the answer is that it probably would have made no difference, the employee's unfair dismissal claim fails. But if the likely effect of taking the appropriate procedural steps is only considered, as it should be, at the stage of assessing compensation, the position is quite different. In that situation, as Browne-Wilkinson J. put in Sillifant's case, at p. 96:

"There is no need for an 'all or nothing' decision. If the industrial tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment."

43. Ms Gill also relied on two passages from the judgement of the Court of Session, Inner House, delivered by Lord Prosser in King and others v. Eaton Ltd. (No.2) [1997] I.R.L.R. 212, starting at paragraph 19 on page 691:

"We are not persuaded that the various expressions of opinion to be found in previous cases are as difficult to reconcile as may be suggested, or as may have been thought when some of these opinions were expressed. If one reads the whole of the final paragraph of the Opinion delivered by Lord Coulsfield in Steel Stockholders (Birmingham) Ltd., it seems to us that he appreciates that the work 'procedural' does not reflect some precisely identifiable category, far less that it represents a category which could be precisely defined in all cases without enquiry into the facts. In broad terms, it appears to us that there will be situations where one can say that what went wrong was 'merely' procedural. Equally, in broad terms, we think there will be situations where one can say that an employee has been deprived of 'something of substantive importance', to use a phrase of Lord Coulsfield's. We see no need to discard entirely terminology of this kind; and while in many cases it may be inappropriate to allocate the particular facts to either category, or to do so without enquiry, it seems to us that a distinction between the 'merely' procedural, and the more genuinely 'substantive' will often be of some practical use, in considering whether it is realistic, or practicable, or indeed 'just and equitable' to embark upon an attempt to construct a hypothesis, enabling one to assess what would have happened, if only it had. If there has been a 'merely' procedural lapse or omission, it may be relatively straightforward to envisage what the course of events would have been if procedures had stayed on track, rather than briefly leaving the track in this way. If, on the other hand, what went wrong was more fundamental, or 'substantive' and seems to have gone 'to the heart of the matter', it may well be difficult to envisage what track one would be on, in the hypothetical situation of the unfairness not having occurred. It seems to us that the matter will be one of impression and judgment, so that a tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure made no difference, or whether the failure was such that one simply cannot sensibly reconstruct the world as it might have been. It does not seem to us that there is anything very wrong in using the word 'substantive' in connection with this latter situation.

"So far as Lord Bridge's observations in Polkey are concerned, it is no doubt correct to say that he is not drawing a categorical distinction between 'procedural' cases and 'substantive' cases, or excluding the latter as a category from the possibility of what has become known as a Polkey reduction. If in a particular case it is possible to say (as in O'Dea) that the fact of the matter is that the applicant has lost only a one-in-five chance of being retained, then we concur with Peter Gibson LJ in saying that there is no arguable case that he should have been compensated on the same footing as if he was bound to have been retained. But it does not seem to us that Lord Bridge was considering or commenting upon the question of how or when one might discover what would have happened, but for the employers' unfair acts or omissions; and we cannot read him as trying to lay down a general proposition, to the effect that an employer will always be entitled, however fundamental his unfair course of action may have been, and however speculative the question of what would have happened but for these acts and omission, to insist upon a tribunal hearing a tract of evidence, designed to reconstruct the world that never was, and ask for a finding as to the likelihood of the employee having been dismissed in that speculative world.

" … Nonetheless, it seems to us that in this case the absence of consultation at the stage when a method was being adopted, and criteria for assessment selected, has the effect of putting that method and those criteria in doubt. To say that this 'goes to the heart of the matter' appears to us to be entirely justified. To ask whether the same method and criteria would have been adopted, if there had been consultation beforehand, or to try to show what method and criteria would have been adopted, in the light of consultation, is in our opinion to embark upon a sea of speculation, where the opinions of witnesses could have no reliable factual starting point. In such a situation, a tribunal is in our opinion well justified in refusing to allow evidence as to whether the unfair act or omission 'made a difference'."

44. While we acknowledge its exceptional nature, we do not think that the exercise undertaken by the Industrial Tribunal which led to Decision (4) is necessarily impermissible. An Industrial Tribunal must award such compensation as is "just and equitable". If the facts are such that an Industrial Tribunal, while finding that an employee/applicant has been dismissed unfairly (whether substantively or procedurally), concludes that, but for the dismissal, the applicant would have been bound soon thereafter to be dismissed (fairly) by reason of some course of conduct or characteristic attitude which the employer reasonably regards as unacceptable but which the employee cannot or will not moderate, then it is just and equitable that compensation for the unfair dismissal should be awarded on that basis . We do not read Polkey or King –v Eaton Limited as precluding such an analysis by an Industrial Tribunal and we do not think that the exercise which they performed was self-evidently incorrect given the adverse view which they had formed of this particular appellant (see further at paragraphs at 56-58 below). It follows that we are unable to accept Ms Gill's first submission.
45. As to her second submission, Ms Gill submitted that the Industrial Tribunal had erred in principle when it stated that it "rejected an assessment of the percentage risk" (paragraph 19 of the extended reasons). She submitted that it was incumbent on the Industrial Tribunal to undertake an assessment of the chance that, notwithstanding the appellant's unfair dismissal, she would/might have been dismissed fairly at a later date: see the speech of Lord Diplock in Mallett v. McMonagle [1970] A.C. 166, 176 where he said:

"But this still leaves the Court with the task, with which it has been confronted since the Fatal Accidents Act was passed, of estimating how long the dependants would have continued to benefit from the dependency, had the deceased not have been killed, and what the amount of the dependency would have been in each year of that period.

"The role of the Court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a Court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the Court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."

46. In Allied Maples Group v. Simmons & Simmons [1995] 1 WLR 1602, Stuart-Smith L.J. said at page 1610:

"Questions of quantification of the Plaintiff's loss, however, may depend upon future uncertain events. For example, whether and to what extent he will suffer osteoarthritis, whether he will continue to earn at the same rate until retirement, whether, but for the accident, he might have been promoted. It is trite law that these questions are not decided on a balance of probability, but rather on the Court's assessment, often expressed in percentage terms, of the risk eventuating or the prospect of promotion, which it should be noted depends in part at least on the hypothetical acts of a third party, namely the Plaintiff's employer."

47. It is submitted by Ms Gill that the Industrial Tribunal were wrong in law to reject the percentage risk approach; they should have adopted it and assessed the chances, in percentage terms, of a possible fair dismissal occurring after the actual unfair dismissal. Ms Gill asserts that the Tribunal made a finding of fact in relation to a possible future event when what is required at law is an evaluation of the chance of the possible future event happening.
48. The authorities cited to us support Ms Gill's submission that, where it is appropriate to assess what would or might happen in the future, the correct approach is to assess the chance of the suggested event happening. In many circumstances it may well be sensible to assess that chance in terms of a percentage, as in the case which Browne-Wilkinson J had in mind in the passage from Sillifant – v – Powell Duffryn quoted by Lord Bridge in Polkey –v – Dayton (see paragraph 39 above). On the other hand, as we think Ms Gill accepted in argument, chances cannot always be assessed in those terms. Thus in the kind of case which was referred to by Lord Diplock in the above passage from Mallett v McMonagle, (see paragraph 44 above) i.e. the assessment of damages under the Fatal Accidents Acts, the court has to consider what the chances are that a particular thing will or would have happened, but it does not ordinarily do so by formally applying a percentage approach.
49. Whether it is appropriate to assess the particular chance in percentage terms will depend on the circumstances. Thus, in the Allied Maple Group case (see paragraph 45 above) Stuart-Smith LJ did not say that the assessment of the chance must be expressed in percentage terms, but only that the assessment is often expressed in percentage terms. The difficulty of expressing all chances in percentage terms can be seen from the kind of problem which existed in this case. In the kind of case Browne-Wilkinson J had in mind, there is no difficulty. Thus, where it can be seen that, but for some procedural discrimination, there was, say, a 20 per cent chance of an employee being dismissed in any event at the same time, the percentage approach is appropriate.
50. On the other hand, in a case like the present, where the question is, or may be, whether there was a chance of the employee being fairly dismissed in the future, the percentage chance is likely to vary according to the timescale under consideration. Thus, there may be a 20 per cent chance of dismissal in six months but a 30 per cent chance in a year. It is not easy to resolve those conclusions into some overall percentage by which "the normal amount of compensation" (per Browne-Wilkinson LJ) should be reduced. Indeed, in such circumstances, it may not be possible to identify an overall percentage risk. All will depend on the facts of the particular case. The crucial factor is that what is being assessed is a chance.
51. It seems to us to follow that it cannot be said that to refuse to assess on a percentage risk is necessarily wrong in principle, especially in a case of this kind where the Industrial Tribunal was considering whether the appellant would or might be fairly dismissed within or after a given period. The eventual approach of the tribunal, as we read their reasons, was to consider the chance of the appellant being fairly dismissed by six months from the date of her unfair dismissal. If (as it appears) they concluded that there was a 100 per cent chance of her being dismissed within six months, we can see nothing wrong in principle with the exercise which they performed.
52. In this regard the three crucial sentences in the Industrial Tribunal's findings are:

"They gave rise to the question of whether, in due course and irrespective of the Applicant's previous complaint to the Tribunal, they would have led to her dismissal in any event. We considered but rejected an assessment of the percentage risk. We came to the conclusion that at some point such a dismissal would have taken place." (emphasis added)

53. We read these sentences in their context as meaning that the Industrial Tribunal were satisfied that the chances of a possible fair dismissal taking place after an actual, unfair dismissal were 100 per cent (i.e. certain) by a particular date. That seems to us a legitimate approach. Where the appellant was in the estimation of the Industrial Tribunal on an inevitable course towards dismissal, it was legitimate to avoid the complicated problem of some sliding scale percentage estimate of her chances of dismissal as time progressed, by assessing a safe date by which the tribunal was certain (if it felt able to be certain) that dismissal would have taken place and making an award of full compensation in respect of the period prior thereto, (ignoring any question of 'interim' percentages).
54. As to her third submission, Ms Gill sought to persuade us that the conclusion of the Industrial Tribunal in decision (4) was perverse. In this she faced a formidable task. We are mindful of what Lord Donaldson M.R. said in Piggott Bros. & Co. Ltd. V. Jackson & others [1991] I.R.L.R. 309, at p.312:

"A finding of fact which is unsupported by any evidence clearly involves an error of law. The Tribunal cannot have directed itself, as it should, that findings of fact need some evidence to support them. The danger in the approach of May L.J. is that an appellate court can very easily persuade itself that, as it would certainly not have reached the same conclusion, the Tribunal which did so was "certainly wrong". Furthermore, the more dogmatic the temperament of the judges concerned, the more likely they are to take this view. However, this is a classic non sequitur. It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the Employment Appeal Tribunal. will always almost have to be able to identify a finding of fact which was unsupported by any evidence or a clear mis-direction in law by the Industrial Tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as "perverse"."

55. Ms Gill accepts the primary findings of fact made by the Industrial Tribunal. Those facts include the Industrial Tribunal's assessment of the appellant's character and behaviour, upon which they based their conclusion that dismissal within six months was inevitable. It is instructive to refer to passages in their Extended Reasons.
56. The first passage reads as follows:

"(p) The Applicant was and is an extremely competent advocate: before us, witnesses for the respondent accept that and her conduct of her case confirmed it. Moreover, we had no reason to doubt that her preparation work was meticulous: we were impressed by her command of the smallest details of this case. However, having heard and read all the evidence and having observed the Applicant at great length during the hearing we were driven to the conclusion that her attitude towards many of her work colleagues – whether or a senior, junior or the same grade – was unacceptable on occasions and that, as a result, her working relationship with those colleagues was extremely poor. We bore very firmly in mind the nature of the activities in which the Applicant has been engaged in the past, in particular in regard to women's affairs, and that some people may well adopt a discriminatory approach towards such a person. We also took full account of the complaints to which the Applicant referred us during the course of the case. Some of those concerned Mr Frankland. Nevertheless, by and large we accepted what he said about the Applicant's personality. We took the view that it was supported by an abundance of other evidence. We concluded that, for many at the Authority, the Applicant was an extremely difficult person with whom to work. With regard to matters which had nothing at all to do with gender, she was on occasions aggressive and abrasive. Although very quick to complain of perceived rudeness from others, she was sometimes extremely cutting towards and indeed contemptuous of persons with whom she came into contact in the course of her work. Some of those were colleagues within her own department, or at least the Authority, who dealt with her on a professional basis. Some instances of this sort of behaviour are set out hereafter: at this stage, since the point was of considerable importance in the case, we make merely a general observation. It is relevant to add, that repeatedly in the course of this case the Applicant treated Ms Langridge with disdain and contempt. In saying that, we have taken full account of the length of cross-examination and the extent to which it must have tried the Appellant's patience. We have also borne in mind that the Applicant's complaint of Ms Langridge's behaviour at and in relation to both the disciplinary hearing and the hearing of her earlier complaints of discrimination. However, we consider it pertinent to say that on many occasions during the course of her evidence the Applicant responded to Ms Langridge with studied contempt. That formed some corroboration of the respondents' case in this regard. On occasions, when fellow employees complained about her, the Applicant reacted by making a counter complaint against that employee, effectively deflecting and neutralising the criticism of her. Many times during the course of cross-examination, the Applicant responded to a question about herself not by answering it but by turning it around as a complaint against the respondent. We accepted that successive articled clerks declined to share a room with the Applicant as they would ordinarily have done, and that a number of junior officers both within and outside the Applicant's department were most unwilling to have any contact with her although ordinarily such contact would have been required for the performance of the duties of all concerned. We noted that many of these employees were women. We accepted that the Applicant did not have any insight into her conduct or the problems that it created."

57. The second relevant passage relates to an incident which occurred in about April 1994 between the appellant and Ms Zancudi. We need not go into the details of the incident. The Industrial Tribunal said:

"The Applicant was extremely contemptuous and rude. Before us, she professed to see nothing wrong in her behaviour. Indeed she maintained that Ms Zancudi was entirely at fault in failing to make a prior appointment and then in attempting to discuss matters (that is, the police investigation and the proceedings contemplated by the Applicant) which were entirely confidential to each of them. The Applicant's argument was spurious. It was absurd to suggest that officers within an organisation such as this Authority, particularly those of the same grade, should have made an appointment or even make telephone contact before they can see each other. The Applicant's approach said a great deal about that which she expected from colleagues. Moreover, Ms Zancudi's enquiry was genuine and entirely reasonable: she and the Applicant were both employees of the same Authority in the best interest of which Ms Zancudi was acting. The Applicant's conduct led to a memorandum, though not a complaint from the Assistant Borough Treasurer to Mr Hayes (R2,323). The reference therein to the Applicant's "unco-operative manner" was an understatement. Mr Hayes undertook to investigate. He approached the Applicant on the point. It was only then, some 7 days after the incident, that the Applicant counter-complained about Ms Zancudi . . . She contended that Ms Zancudi "had made no appointment to see me and failed to telephone me in advance" and that she "appeared to me to be in a state of some agitation". She pursued that latter point by saying that Ms Zancudi "was reluctant to leave my office and seemed to me to be extremely anxious about the investigation and the course my own enquiries might be taking". That latter phrase contained another extremely unpleasant inference of impropriety of some sort on the part of Ms Zancudi. The Applicant weighs her words with some care and we had no doubt that inference was quite deliberate. The Applicant went on to ask Ms Zancudi's senior "be requested to draw to the attentions of his staff that there is a correct and established procedure for communicating with other departments and that it is counter productive and impolite to simply march into somebody's office and expect to be dealt with immediately". If that is how the Applicant dealt with her colleagues – and in our view it probably was – then it is hardly surprising that some of them would not talk to or co-operate with her."

58. Finally, on 9^th May 1996 an incident occurred which caused Mr Frankland to make a complaint about the appellant to Mr Hayes. Mr Frankland had requested the attendance of the appellant at a meeting but she did not attend. She did not accept Mr Frankland's strictures upon her failure to attend and in order to shift the blame from herself she at some stage suggested that Mr Frankland "might have been drinking or was perhaps suffering from stress". The Tribunal remarked:

"This was another instance of the Applicant making, carefully and with deliberation, an extremely serious allegation without the slightest evidence for it. As the Applicant must have known, the suggestion that Mr Frankland may have been drinking would have had very serious professional consequences. That fact, and the absence of any foundation, did not deter her. In due course, she was to withdraw that part of her complaint but that was not for a further two weeks. She insisted that something must be done about this matter."

59. There are other incidents upon which the Industrial Tribunal formed a very unfavourable view of the appellant's actions and personality. These were set out in paragraph 17 of Mr Bloch's skeleton argument and in the judgment of the Employment Appeal Tribunal at paragraph 19.
60. Nonetheless, Ms Gill submitted that the Industrial Tribunal could not be certain that Mr Kilburn would have dismissed the appellant after her actual, unfair dismissal. She pointed to a number of factors. No disciplinary action had previously been taken against the appellant. She also submitted that the Industrial Tribunal's conclusion that Mr Kilburn would have completed (fair) dismissal procedures within the six month period was inconsistent with the way in which he had responded to earlier complaints. The Industrial Tribunal's conclusions, it was submitted, were speculative.
61. We can see the force of those submissions. However, the question is whether the Industrial Tribunal's conclusion was a permissible option on the evidence. In our judgment it was. True it may be that such an option will rarely be open, and that it will need evidence of a compelling nature to support it. However, it seems to us that it existed in this case. Certainly, we do not think it can be said that there was so little basis for the Industrial Tribunal's finding (construed as it was by the Employment Appeal Tribunal), that this court should interfere.
62. The appellant's appeal therefore fails and is dismissed.

The Remedy Appeal

63. On 2^nd and 3^rd September 1998, evidence and submissions were heard by the Industrial Tribunal and they gave their decision on 16^th November 1998. So far as is material to this appeal, the Industrial Tribunal found that consequent upon the appellant's suspension and subsequent dismissal from the respondent's employment, she felt considerable outrage and distress. Nevertheless, as her statement made clear, a very considerable proportion of her reaction was due to the fact of her suspension and dismissal and would have been felt by the appellant when the same events had occurred at a later stage. The Industrial Tribunal expressed themselves satisfied that the appellant had suffered injury to feelings for which she should be compensated (see paragraph 10) they said:

".. in our judgment, the assessment of compensation in this case had to be made on the basis that the Applicant would have been fairly dismissed, for reasons which have nothing to do with the victimisation, by the end of 6 months after her dismissal was actually effected"

64. Moving to the issue of quantification the Industrial Tribunal stated (paragraph 10):

"However, a substantial amount of her written and oral evidence before us was largely irrelevant to this issue: it was concerned with, for example, allegations of discrimination which did not form part of the substantive complaint before us, had been subject of the proceedings before the previous Tribunal (and thus had been covered by that Tribunal's decision as to remedies) or related to the fact of the Applicant's dismissal and not the reasons for the same. With regard to that last matter we took the view that consequent upon our findings that the Applicant would have been fairly dismissed at the end of a further six months we had to discount the considerable stress caused to the Applicant by the fact of the termination of her employment because that was a matter which she would have suffered in any event within a relatively short period. The injury to feelings for which the Applicant was entitled to compensation was that which was due, not to the dismissal per se, but to the fact (and her knowledge of the fact) that when it was carried out the underlying reason was her production of the diary notes in the course of the previous proceedings. That injury was not a minor matter. We accepted that the Applicant had been caused distress and anger by the knowledge that her dismissal had been caused, or at least accelerated, by matters which she had raised at the hearing of her complaint of sex discrimination. We further accepted that that distress and anger was aggravated by the way in which the respondent approached the matter – in particular, by the timing of the Applicant's suspension and by holding a disciplinary hearing followed by an appeal which were effectively foregone conclusions – and by resolute refusal to concede that it had done anything wrong. Having said that, the extent of that distress and anger was limited. Moreover, this was not a case in which an employer had invented or even greatly exaggerated complaints about the employee in order to justify its actions: by and large we accepted those complaints and that led us to the conclusion that the Applicant would still have been dismissed by the end of a further 6 months, taking the view that what had been invented was not the complaints but Mr Kilburn's knowledge or and reliance upon them at the material time. Taking all these matters into account, and doing the best we could in an extremely difficult and unusual case, we decided that a fair assessment of compensation for injuries to feelings (to include damages for an element of aggravation) would be £2000. That was the sum which we awarded the Applicant."

65. The Employment Appeal Tribunal said of the passages quoted in paragraphs 61 and 62 above:

"As we understand [their] combined effect…the Tribunal first looked to their estimation of Ms O'Donoghue's present and future injury to feelings as a whole (namely the injury which, at the point of dismissal, was already in the past or was then present and that which then lay in the future, including that which lay even as far in the future as the hearing assessing compensation and thereafter). They then took out of the totality of that injury such injury which, at the point of dismissal, lay in the future but which would have been suffered in any event as a consequence of the fair and undiscriminatory dismissal within 6 months, which the Tribunal held would have occurred. The Tribunal compensated only for the residue of injury to feelings on the basis that only that residue was consequent upon any wrongful acts of the Council."

66. The Employment Appeal Tribunal then referred briefly to two authorities. The first was Coleman v Skyrail Oceanic Ltd [1981] ICR 864CA in which Lawton L.J. stated at 871:

"Compensation is to be awarded for foreseeable damage arising directly from an unlawful act of discrimination. It follows that an applicant can claim for any pecuniary loss properly attributable to an unlawful act of discrimination…Any injury to feelings must result from a knowledge that it was an act of sex discrimination that brought about a dismissal. Injury to feelings unrelated to sex discrimination…is not properly attributable to an unlawful act of sex discrimination"

67. Reference was also made to Alexander v The Home Office [1985] IRLR 190 CA in which, at paragraph 13, May L.J. stated:

"Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damage referable to this can be readily calculated. For the injury to feelings, however, or the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the Judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained."

That was a case of racial discrimination but, as the Employment Appeal Tribunal observed, the same approach is applicable in cases of sex discrimination.

68. The Employment Appeal Tribunal thereafter stated its own view shortly in the following manner:

"We cannot hope, from the material laid before us, to visualise exactly what picture the evidence as a whole should have created. Certainly there is nothing about the award of £2,000 which of itself causes us concern that anything other than the "experience and good sense of the Judge and his assessors" was deployed. Moreover, we identify no error of law in the Tribunal's attempt to separate out that injury which flowed and that which did not flow from the Council's unlawful acts."

69. It may well be that the Employment Appeal Tribunal, looking at the matter in the round, considered that an award of £2000 for the appellant's injured feelings was sufficient. However, we cannot agree with their observation that they could identify no error in the approach of the Industrial Tribunal which led to that award.
70. Section 65(1)(b) of the 1975 Act entitles a complainant to a monetary award in the form of:

"an order requiring the respondent to pay the complainant compensation of an amount corresponding to any damages he could have been awarded by a county court ..to pay to the complainant if the complainant had fallen to be dealt with under Section 66"

Section 66(1) provides that non-employment claims under Part III of the Act:

"may be made subject to civil proceedings in like manner as any other claim in tort".

Section 66(4) provides that

"For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head."

71. Compensation for unfair dismissal is provided for in Chapter II of the Employment Rights Act 1996. Section 112 provides that compensation should be calculated according to Sections 118 to 127A. There is no compensation for injury to feelings or the manner of dismissal, unless that gives rise to financial loss: see Norton Tool v Tewson [1972] IRLR 86. Thus, as Coleman v Skyrail makes clear, a complainant is entitled to an award for injury to feelings in respect of those feelings of injury he or she had at the time of the discriminatory dismissal arising from the knowledge that it was an act of sex discrimination/victimisation which brought about the dismissal. That was the complainant's entitlement in this case. Those feelings would arise, and no doubt continue, as from the date of that dismissal.
72. In our view, when considering the injured or outraged feelings of the complainant, the Industrial Tribunal were right to strip out and ignore all the appellant's past feelings of injury in relation to her earlier complaints (whether or not they had been found to afford her a remedy for discriminatory treatment), and to limit her award to the injury to her feelings which arose from the knowledge that her dismissal was due to victimisation in relation to her earlier complaint. However, they were in error to subtract from the sum they would otherwise have awarded, an unspecified amount in respect of their finding that, in six months time, the appellant would have been (fairly) dismissed in any event. Such 'dismissal' was a notional event which never took place. It was properly to be taken into account as a cut-off point in respect of any claim based on future loss of earnings, because it would remove the underlying assumption of a right to payment of salary by the respondent as from the date of dismissal; however, it could not be similarly regarded, nor indeed would it have similar effect, in respect of the claim for injury to feelings, which there is no reason to suppose it would have dispelled or superseded. The appellant's claim for injury to feelings was based on, and fell to be quantified as, damages for the sense of anger, upset and humiliation arising from loss of her job because of sex discrimination, in the form of victimisation for bringing her earlier (successful) claim. To make a discount from those damages in respect of a separate (notional) future event which might have exacerbated, but would hardly have reduced, her sense of outrage was unjustified.
73. It was accepted by the parties that, if we were satisfied that the Industrial Tribunal was in error in its approach, we should ourselves make an assessment of the appropriate award for injury to the appellant's feelings in respect of her victimisation. We note that the Industrial Tribunal made their award of £2,000 on the basis of what they regarded as 'a fair assessment of compensation for injured feelings (to include damages for an element of aggravation)'. It seems to us that any element of aggravation would have had its principal impact by way of injury to feelings early in the period of the dismissal, and one might fairly expect that, over the ensuing year or so, the appellant's feelings of injury and indignation would gradually subside.
74. Following the hearing of the appeal, at our invitation, the parties submitted to us references to a considerable number of individual decisions illustrative of the appropriate level of damages in cases of sex and race discrimination. Mr Bloch relied upon the awards in the cases summarised under the heading of 'Sex Discrimination' in Butterworths' Discrimination Law. Ms Gill on the other hand referred us to the more recent decision in ICTS (UK) Limited –v- Tchoula [2000] IRLR 643, in which there is a helpful review of the position in relation to awards for injuries to feelings by the Employment Appeal Tribunal, which adopted a broad division of the cases into 'higher' and 'lower' categories of award, depending upon the circumstances of the case. Ms Gill also identified to us various decisions in the field of racial discrimination which were at the top end of the higher category of case and which we found of little assistance in this case. We have no doubt that the instant case was rightly treated by the Industrial Tribunal as meriting a lower rather than a higher category of award. Even within that category, the cases cited to us reveal a wide range of awards, which appear to us to demonstrate that the award of £2,000 made to this appellant was towards the bottom end of the lower range. No doubt this governed the view of the Employment Appeal Tribunal that there was nothing in the amount of the appellant's award per se which caused them concern. However, because it seems to us clear that the award was on the low side, and because it included an impermissible discount, we allow the appellant's appeal under this head and order that her award of damages in respect of injury to feelings be increased from £2,000 to £5,000.

Conclusion

75. (i) The Discrimination Appeal is allowed and the decision of the Industrial Tribunal restored (see paragraph 28 above)

(ii) The Victimisation and Unfair Dismissal Appeal is dismissed (see paragraph 62 above).

(iii) The Remedy Appeal is allowed and the appellant's damages award will be increased by the sum of £3,000. (See paragraph 74 above).

ORDER:

1. Appeal allowed to extent indicated in paragraph 75.

2. Costs to be considered globally and a detailed assessment of the global costs of the appeal should take place, the appellant being awarded 40% of her costs of the global appeal.

3. Application for permission to appeal to the House of Lords refused.

(Order does not form part of approved Judgment)