Appeal No.UKEAT/0468/05/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 May 2006

Before
HIS HONOUR JUDGE BIRTLES 
MR P A L PARKER CBE
MR P SMITH

MR S DEMAN	APPELLANT

DR S COATES                                                                                                                                                                         	RESPONDENT

Transcript of Proceedings

JUDGMENT

		
	APPEARANCES

For the Appellant	Mr DALE MARTIN
(Of  Counsel)
Instructed by:
Messrs Hudgell & Partners Solicitors
35/36 Market Street,
Woolwich,
London,
SE18 6QP	
For the Respondent	No appearance or representation by or on behalf of the Respondent	

SUMMARY
Practice and Procedure: Striking-out/dismissal - Split hearings 
Employment Tribunal refused several applications for an adjournment of the liability hearing because of the Respondent’s illness and proceeded to find Respondent guilty of two acts of direct discrimination.  At the remedies hearing the same Employment Tribunal found it would not be just and equitable to make an award of compensation because the Respondent was not able to be present at the hearing due to illness and struck out the claim: a clear error of law.  Case remitted to a fresh Employment Tribunal to consider the reinstated claim for compensation.
  
HIS HONOUR JUDGE BIRTLES

1.	This is an appeal from a remedies hearing of an Employment Tribunal sitting at London South on 10 May 2005.  The Tribunal was composed of Mr I MacInnes, Chairman, and the members were Mr J Abrams and Ms H Bond.  The unanimous Reserved Judgment of the Employment Tribunal was to award the Claimant, Mr S Deman, compensation in the amount of £35,667.90 against the First Respondent, the European School of Economics (ESE) and second, to dismiss the proceedings against the Second Respondent Dr S Coates, who was the Academic Director at the London Campus.

2.	It is necessary to refer to the history of the case.  The Appellant, Mr Suresh Deman, is of Indian ethnic origin.  He had applied to the first Respondent, the ESE, for the post of Adjunct Lecturer in Finance and also for the post of Assistant Academic Director.  Dr Coates refused to tell the Appellant how his job applications were progressing, but subsequently informed him that he was not selected for either post.  She refused to put her decisions in writing.

3.	On 5 April 2002, the Appellant lodged an originating application in the London South Employment Tribunal claiming race discrimination against the three Respondents.  

4.	Prior to lodging his claim, the Appellant had served a questionnaire under Section 65 of the Race Relations Act 1976.  No Respondent answered those statutory questionnaires.  The matter came before the Tribunal on a liability hearing.  The hearing spread, unfortunately, over a considerable period of time.  The Tribunal sat on 6 and 8 May 2003, on 5 June 2003 in Chambers, and then again in considering evidence on 20, 21 and 22 October 2003 and 6 7, 9 and 27 September 2004 for further consideration of evidence and submissions, and finally on 3 November 2004 in Chambers.  The decision was promulgated on 24 January 2005.  The Tribunal found that the Appellant had been discriminated against in respect of his applications for an Adjunct Lectureship in Finance and for the post of Assistant Academic Director.  It found that the first Respondent, the ESE, was liable for both of those acts of discrimination and that the second Respondent, Dr Coates, was also liable for the acts of discrimination in respect of both of those posts.  The claim against Dr Mitchell was dismissed.

5.	It is clear from the first page of the Employment Tribunal decision on liability: EAT bundle page 7, that on 6 and 8 May 2003, Dr Coates was represented by a Mr Palmquist - who was her husband and apparently a New York attorney - and on 20, 21 and 22 of October 2003 she appeared in person.  She did not appear and was not represented on 6, 7, 9 and 27 September 2004.  

6.	Following that decision on liability, there was an application by Dr Coates for a review.  That was dealt with by the same Tribunal on 18 March 2005, the Judgment of the Tribunal being sent to the parties on 1 April 2005: EAT bundle pages 30-34.

7.	Before turning to that review, it is necessary to look at the problem which the Tribunal had to deal with caused by the fact that Dr Coates did not appear for the final four days of the Tribunal hearing.  There is no doubt that Dr Coates had a medical condition.  On the first day of the adjourned hearing on 6 September 2004, Dr Coates did not attend and was not represented.  The Chairman reported to the parties that Dr Coates had sought an adjournment of the hearing on the grounds of ill-health, but that he had refused it.  There had been no reply or response from Dr Coates to that refusal, but the Clerk reported that at the Chairman’s request she had telephoned Dr Coates’s home number that day and had been told that Dr Coates did not propose to attend on 6 September 2004.  I think we can draw an inference that she would not have attended on the subsequent days in September 2004 either.  The Chairman indicated to the parties that the Tribunal would now consider whether to exercise its discretion to proceed with the hearing in the absence of Dr Coates in accordance with the Tribunal’s powers contained in Rule 11 (3) of Schedule 1 of the 2001 Regulations.  

8.	The Tribunal decided to consider Dr Coates’s application for an adjournment afresh: see Judgment paragraph 4.  The Tribunal reminded itself of the decisions of the Court of Appeal in Teinaz v London Borough of Wandsworth [2002] IRLR 721, and Andreou v Lord Chancellor’s Department [2002] IRLR 728.  The Tribunal also had regard to Article 6 of the European Convention on Human Rights.  It reminded itself of the history of the matter and the correspondence between the Tribunal and Dr Coates and her husband Dr Palmquist: see paragraphs 5 and 6 of the Judgment.

9.	It is clear that the Tribunal approached the issue in the way set out in paragraph 6.16.5 of its Judgment:
“6.16.5	Mindful of the Court of Appeal’s guidance Teinaz and Adreou, that it is the duty of the Tribunal in exercising its discretion to adjourn or proceed with the hearing to seek a practical solution it was our unanimous decision that if we are to comply with Article 6 of the European Convention on Human Rights for a fair hearing for all the parties within a reasonable time, we must proceed with the hearings now.  In balancing the rights of the claimant, Dr Mitchell and Dr Coates, it is our view that it is fairer for all the parties to proceed now rather than to adjourn in circumstances where we can have no confidence that even if we adjourn as we would have to until February/March 2005, we will not then find ourselves in the same position as we are now.  We will have regard to Dr Coates’ Notice of Appearance, witness statement and documents submitted by her and to any submission she may make as invited below.  The Tribunal decided it would inform Dr Coates by letter of its decision, sending her the witness statements read at the hearing and the additional documents disclosed and seek her submissions on them.”

10.	The Tribunal then received a letter by fax with attachments on 8 September 2004 from Dr Coates, which protested at its decision to continue with the hearing in her absence.  Those documents made a number of factual statements and submissions.  This was copied to the other parties and the Tribunal decided it would take this letter and attachments into account: see paragraph 6.17 of the Judgment.  The Tribunal continued with its hearing on 8 September, then adjourned to 9 September and again a hearing took place on that day.  Again, the hearing was not concluded and it was adjourned to 27 September 2004.  On 10 September 2004, the Tribunal wrote to Dr Coates informing her of its decision to proceed in her absence: see paragraph 6.19 of the Judgment.  Dr Coates wrote again to the Tribunal by letter dated 22 September 2004 enclosing a letter from her general practitioner’s locum, a Dr Ingram, which was itself dated 14 September 2004.  It said this:
“This patient of Dr Wilkinson’s was seen by me today, 14/9/2004.  
She is still undergoing medical treatment, part of which involves surgical operation at the end of September 2004.  
I can confirm that her anxiety relates to a medical condition alone.  
In view of her treatment she will be unavailable for any court attendance.”                                                                         

11.	The Tribunal stated that it considered this letter at the start of the hearing on 27 September 2004.  It said this: 
“6.20	The letter referred to a surgical operation at the end of September.  No mention of this had been made in Dr Wilkinson’s report of 17 August.  We noted that not for the first time Dr Coates had delayed sending a medical report to the Tribunal which had the effect that the Tribunal had no realistic opportunity of seeking any clarification before the hearing.  Unlike in the Teinaz case none of the parties in this case were represented and the options envisaged by the Court of Appeal in that case were not realistically open to us.  
This letter from Dr Ingram reinforced our concern that the risk that if we granted an adjournment now we would find ourselves in exactly the same position at any adjourned hearing was not just one we should take having regard to the interest of justice and the requirement for all the parties to have a fair trial within a reasonable time.  For the same reason (and subject to the same conditions) as we decided to proceed with the hearing on 6, 7 and 9 September in Dr Coates’ absence we decided to proceed with this hearing.” 

12.	The hearing was concluded on 27 September 2004 in Dr Coates’s absence.  The Tribunal made orders for the exchange of written submissions and the exchange of replies to written submissions: see paragraph 6.21 of the Judgment.  Submissions were made and exchanged between the claimant, the Appellant here, and Dr Mitchell.  Nothing was heard from Dr Coates until 2 November 2004, when an email was received from Dr Palmquist which was given to the Chairman at 10:35 am on 3 November 2004.  That email stated that Dr Coates was due to have surgery in two days time, had not received any written submissions, as she had not been well enough to open her emails.  Mr Palmquist said that Dr Coates was not well enough to enter into correspondence or deal with documentation.  The Tribunal again considered what to do, and it said this:
 “7.2	The Tribunal considered whether it should proceed in Chambers to make its judgment or not.  It bore in mind that the Chairman was to have an operation on 10 November 2004 and anticipated to return to work in mid-January.  Mr Abrams was now to have an operation on 25 November 2004 and would not be returning until April 2005.  Ms Bond had had an investigatory operation from which she had not had the results.  We noted that Dr Coates had again left it until the last moment to inform the Tribunal of the situation.  We had the same considerations as we had before but in a situation where it was clear that we would not be able to meet again to consider the evidence we had heard until April 2005 - three and a half years after the events in question and some six months since we had last heard evidence.  (Bearing in mind the history of this case we did not consider that we should seek the parties agreement to the Tribunal making its judgment in the absence of Mr Abrams.   There was insufficient time available to seek agreement and we considered the chances of obtaining agreement of all the parties to be nil).  It was our unanimous decision that for the same reasons (and subject to the same conditions) as we had decided to proceed with the hearings on 6, 7, 9 and 27 September 2004 in the absence of Dr Coates we should proceed to make our decision.”

13.	The Tribunal (see Judgment paragraph 7.2) then set out the issues, relevant findings of fact, the law and reached its conclusions which I have already recited, namely that the ESE and Dr Coates were both guilty of direct discrimination in the application of the Appellant for the post of Adjunct Lectureship in Finance and for the post of Assistant Academic Director. I pause here to say this.  It is quite clear from the passages that I have read that the Tribunal gave lengthy and deliberate considerate consideration on a number of occasions as to whether or not it should exercise its judgment to adjourn the case in the light of Dr Coates’s inability or apparent inability to attend the hearings.  Indeed it continued that deliberation up to and including the time that it was to consider its decision on the merits.  

14.	As I have indicated, the matter came on a review by Dr Coates which was also to be the hearing on remedies on 18 March 2005.  Dr Coates’s application for a review was dismissed but in the light of a medical report dated 8 March 2005 from her General Practitioner, Dr Wilkinson, the Tribunal decided to stay the remedy proceedings against her whilst proceeding with the remedy hearing against ESE.  

15.	I deal first with the application for the stay.  The matter is dealt with in paragraphs 3 and 7 of the Employment Tribunal Judgment dated 1 April 2005.  In paragraph 3 it said this:
“3		Dr Coates had submitted to the Tribunal a medical report dated 8 March 2005 from her General Practitioner which indicated that she would not be fit to attend the Tribunal for at least six months from today’s date.  The Tribunal decided that all remedy proceedings against Dr Coates should be stayed until such time as she is certified fit to attend a remedy hearing by her General Practitioner (or other registered medical practitioner).”

16.	In paragraph 7 of its Judgment where the Tribunal deal with the application for a review, the Tribunal said this:
“The other circumstances are where something has come to light after the hearing which casts a doubt over matters considered in the hearing.  The Tribunal now has the benefit of Dr Coates general practitioner’s report of 8 March 2005.  Sadly the Tribunal’s concern that the risk that if it granted an adjournment now, it would find itself in exactly the same position at any adjourned hearing was only too prescient.  It is clear Dr Coates will not be fit to attend the hearing for another six months.  In that case it is clear that nothing has come to light since the hearing which casts doubt on the reasoning which the Tribunal adopted to come to its conclusions.”

17.	That is quite clearly a reference back to the several decisions taken by the Employment Tribunal on the evidence then available to it not to adjourn the liability hearing in the case of Dr Coates or indeed at all.   The remedies hearing against the ESE was adjourned to 10 May 2005.  It came before the same Tribunal on 10 May 2005.  The Judgment was sent to the parties and entered in the Register on 9 June 2005.  The unanimous judgment of the Tribunal was to award the Appellant compensation in the sum of £35,667.90 against the first Respondent, ESE, and second that the proceedings against Dr Coates be dismissed.  

18.	The Tribunal heard evidence from the Appellant and it made a detailed calculation of the compensation it awarded the Appellant that included injury to feelings and financial loss less deductions.  The bulk of the Judgment deals with the issue of the calculation of the compensation which was awarded against ESE.  

19.	The Tribunal deals only briefly with Dr Coates.  It did so at paragraph 14 of its Judgment where it said:

“14		It is the unanimous judgment of the Tribunal that no award of compensation should be made against Dr Coates.  In its judgement sent to the parties on 21 January 2005 the Tribunal gave its reasons for proceeding with the hearing in the absence of Dr Coates.  These were that she had had the opportunity of seeing the evidence and making submissions and that in balancing the interests of justice we decided that there could be a fair trial of the issues in her absence and that further delay would delay the Claimant’s right to a fair hearing within a reasonable time.  Those considerations do not apply now.  In our view it would not now be just and equitable to make any award against Dr Coates as she has had (and is unlikely to have for some time) the opportunity to argue her case on remedy before the Tribunal.  She too is entitled to a fair hearing within a reasonable time.  That we find is no longer possible.  It is our unanimous judgment that the proceedings against Dr Coates be now dismissed.” 

20.	Following a preliminary hearing in the Employment Appeal Tribunal (EAT), the Tribunal was asked to supplement its Judgment, in paragraph 14, by further reasons following the well-known decision of the Court of Appeal in Barke v Seetec Business Technology Centre Ltd [2005] IRLR 633.  It did so by a note written by the Chairman Mr MacInnes dated 23 December 2005 and received at the EAT on the same day:
“The Employment Appeal Tribunal has invited us to provide any further reasons we may have had for our decision in paragraph 14 of our reasons, that it would not be just and equitable to make any award against Dr Coates.  In particular, if there had been any change of circumstances since the Order dated the 18th day of March 2005 staying proceedings against her, we are invited to say what it was.  
Our response is as follows:
a.	There was no change of circumstances regarding Dr Coates (so far as the Tribunal was aware) since the Order dated 18 March 2005.  We enclose the correspondence/orders regarding Dr Coates’ medical condition to which we referred in the order of 18 March 2005 which may be of assistance to the Employment Appeal Tribunal.
b.	Paragraph 14 of our reasons of 10 May 2005.
2.1	At the hearing on 10 May 2005 the Tribunal put to the parties its concern as to whether it would be just and equitable to make any award against Dr Coates and invited submission.
The concern we expressed to the parties was that we had decided to proceed with the hearing on 6, 7, 9 and 27 September 2004 and to make our Judgment in Chambers on 3 November 2004 for the reasons we described in paragraph 1-7 of our reasons.  In arriving at our decision whether to proceed with the hearing or stay the proceedings until Dr Coates was fit to attend we had to balance the rights of the Claimant and Dr Coates to a fair trial.  The hearings before 6 September 2004 had dealt almost exclusively with procedural matters and applications for strike out.  Apart from the evidence of Dr Tambyrajah and some limited evidence from the Claimant (which we reheard on 6 September 2005) all the evidence we heard on the merits of the Claimant’s claim we heard from 6 September 2005 in Dr Coates absence.
Ms Misra for the Claimant submitted that we should continue our stay of the proceedings against Dr Coates until she recovered her health.  Ms Stone for the European School of Economics submitted that we should make an award against Dr Coates.  Neither counsel elaborated any further on those submissions.
2.2	We were conscious that in deciding to proceed as we did we had denied Dr Coates the opportunity to hear the evidence given by witnesses over and above their witness statements (which was considerable), cross examine the Claimant and other witnesses and give evidence herself on matters which arose from that evidence.  Nor were the Claimant, Dr Mitchell (or the Tribunal itself) able to ask Dr Coates any questions or seek any clarification.  A large proportion of our findings of fact related to Dr Coates’ actions.  A number of these were critical to our judgment – see our reasons at paragraphs 10.19 and 10.20.  Paragraphs 10.25 and 10.27 were Dr Coates’ explanation which could not be tested at the hearing.  We could not know what findings of fact we might have made had Dr Coates given evidence and been tested on those matters.
In these circumstances were concerned that a real injustice could be done to Dr Coates if we were to make an award against her.  We were concerned that Dr Coates could not be said to have had a fair trial.  The Claimant and Dr Mitchell had clearly had a fair trial.  European School of Economics had been struck out but, as we decided on 18 March 2005 was permitted to take part in the remedy hearing.  We were satisfied that our decision to proceed on 6 September 2004 was correct (we refused Dr Coates’ application of a review of our decision for that reason).  As far as we are aware she has not appealed against our judgment.  Nevertheless for the reasons set out above and in our reasons we considered it would not be just to make any award against Dr Coates.”

	EAT bundle pages 34 (K) – (L)

The Notice of Appeal  
21.	The Notice of Appeal raises one issue only: whether the Tribunal was right in law in dismissing the claim against Dr Coates and refusing to make any award of compensation against her.  Before proceeding to that appeal, let me say something about appearances today.  The Respondent, Dr Coates, has not appeared today.  She has not entered an appearance or communicated in any way with the EAT, certainly since January 2006.  No change of address has been notified to the EAT.  No medical evidence has been submitted on her behalf as to why she could not appear today either in person or through a representative, legal or otherwise.  There has been no request for an adjournment.  In those circumstances, we decided to proceed with the hearing of the appeal.  The Appellant has been represented by Mr Dale Martin of Counsel, and we are grateful to him for his skeleton argument and the cogent submissions which he has made to us.  
The Law.  
22.	The law relating to remedies for a claim of race discrimination is dealt with in section 56 of the Race Relations Act 1976 
“56		Remedies on complaint under s 54
(1)	Where an employment tribunal finds that a complaint presented to it under section 54 is well-founded, the tribunal shall make such of the following as it considers just and equitable-
(a)	an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;
(b)	an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court or sheriff court to pay to the complainant if the complaint had fallen to be dealt with under section 57.
(c) 	a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse affect on the complainant of any act of discrimination to which the complaint relates.”

23.	This appeal relates solely to section 56 (1) (b) which is a claim for a payment of compensation.  It is important to note that the decision to grant any remedy follows, and if so, what, follows the requirement that the Tribunal must consider it 
“just and equitable to do so.”

In this case, as I have indicated, the Employment Tribunal came to the conclusion that because Dr Coates did not appear at the remedies hearing on 10 May 2005 and was unlikely to be able to do so for at least the next six months, then it was not just and equitable to make any award of compensation against her and it dismissed the claim.  

EAT Decision
24.	In our judgment, the Employment Tribunal made an error of law in adopting the course of action that it did.  Specifically, it took into account an irrelevant consideration, namely, Dr Coates’s absence from the remedies hearing on 10 May because she was unable to be there through illness and unlikely to be there for the following six months.  We adopt the reasoning of the Court of Appeal in the case of Teinaz v London Borough of Wandsworth [2002] IRLR page 721, and particularly the judgment of Lady Justice Arden at  paragraphs 35 and 36, where she said this:

“35	“The starting point is that the appellate tribunal does not read the original application with a view to forming, and if necessary substituting, its own judgment as to the way the discretion should be exercised. Nor does the appellate tribunal consider whether the exercise of discretion by the inferior tribunal is one of which it approves. The discretion remains that of the inferior tribunal. The appellate tribunal only intervenes in a limited number of situations. It set aside the exercise of discretion by the inferior tribunal if the exercise of discretion is 'outside the generous ambit within which reasonable disagreement is possible': see G v G [1985] 1 WLR 647, or, as this court put it in Carter v Credit Change Ltd [1979] IRLR 361 at 364, the tribunal's decision is perverse or such that no reasonable tribunal could have come to. Other situations in which the appellate tribunal can intervene in the exercise of discretion by the inferior tribunal are where the tribunal has made a mistake in law, acted in disregard of principle, misunderstood the facts or failed to exercise the discretion. The other situation in which the appellate tribunal can intervene, and which is the relevant one in this case, is where the inferior tribunal took into account some irrelevant consideration or, alternatively, left out of account some relevant consideration.
36.	Two points flow from this last point. First, it is for the appellate tribunal to determine what considerations are relevant to the question at issue. It does not defer to the inferior tribunal in the selection or identification of these considerations. Second, unless permission is given for fresh evidence to be adduced on appeal, the appellate tribunal makes this determination on the factual material before the inferior tribunal. If the appellate tribunal finds that an irrelevant consideration has been taken into account or that a relevant consideration has been left out of account, the appellate tribunal must conclude that the exercise of discretion by the inferior tribunal is invalidated, unless it can be satisfied that the consideration did not play any significant role in the exercise of the discretion and thus constituted a harmless error involving no prejudice to the appellant.”

25.	What has happened in this case is this.  Through the liability hearing - or at least the second part of the liability hearing in September 2004 and indeed at the point in time at which the Tribunal came to consider in Chambers its decision on liability in November 2004 - the Tribunal carefully considered on each occasion, day by day, whether or not it was right that it should proceed in the absence of Dr Coates who had supplied some medical evidence about her disability to the Tribunal.  In each case, the Tribunal carefully considered that evidence.  It weighed the interests of the parties, it considered the relevant Court of Appeal guidance authority, and it considered Article 6 of the European Convention of Human rights.  On each occasion, it found that it was right to continue with the hearing in Dr Coates’s absence.  Having done so, it proceeded with the hearing on liability and found that Dr Coates was guilty of two acts of direct racial discrimination. 

26.	It considered the position again on 18 March 2005 when it rejected Dr Coates’s application for a review in part on the grounds that she had not been present for the second part of the liability hearing.  In rejecting that application for a review, the Tribunal again reiterated and re-emphasised the issues and confirmed its original decision that it was right to continue with the original liability hearing.  

27.	For reasons which are not at all clear to us, the Tribunal changed its mind on 10 May 2005 at the remedies hearing, when it decided that no award of compensation should be made to Dr Coates and dismissed the claim against her despite the fact that the medical evidence was unchanged.  It is the first time in our experience individually, or collectively, that we have come across a case where an Employment Tribunal has found that the Claimant has succeeded on liability but the Tribunal has then gone on to dismiss the claim when it reached the remedies hearing.  

28.	The reasons given by the Tribunal for its action are set out in paragraph 14 of its original decision and also in its Note to the EAT dated 23 December 2005.  We have striven to make sense of the reasons given by the Tribunal for its decision to refuse Mr Deman compensation against Dr Coates and dismiss his claim against her at the remedies stage.   We cannot do so.

29.	The best we can do is to say that the Tribunal, several months after the liability hearing, had second thoughts about whether or not it had originally made the correct decision to continue with the first hearing on liability.  It had carefully considered that question at each stage of the second part of the liability hearing day by day and found that it was right to continue with the hearing.  The liability hearing, of course, is much more complicated factually than a remedies hearing, and indeed one can well say that the presence of a party at a liability hearing is much more important to that party than it would be at a remedies hearing.  Once liability has been established, it is for the Claimant in the Tribunal – the Appellant here - to establish loss.  

30.	  It is clear from reading the decision of the Tribunal at the remedies hearing held on 10 May 2005 that the Appellant gave evidence to the Tribunal of his employment history and of the effect of the discrimination upon him.  Submissions were made by Counsel as to that evidence and the Tribunal had no difficulty whatsoever in calculating and making an award of £35,667.90 against ESE.  We simply cannot understand how the presence or absence of Dr Coates from the remedies hearing would have made any difference whatsoever to the procedure that the Employment Tribunal had to follow on 10 May 2005.  There was little, if anything, that Dr Coates could have added to the submissions made by Counsel for the ESE.  The only possibility that occurs to us would be in relation to apportionment of that sum between the ESE and Dr Coates: see Way v Crouch [2005] IRLR 603.  That is an exercise which the Tribunal could easily have done, it being the same Tribunal that heard the evidence in relation to liability.  It follows that the Tribunal have taken an irrelevant matter in to account, namely the absence of Dr Coates from the remedies hearing on 10 May and that that amounts to an error of law.

Remission
31.	We have carefully considered the decision of Burton J. in Sinclair Roche & Temperley v Heard [2004] IRLR 763 and in particular, to the matters set out in paragraph 46.  It is right that we should address ourselves to them briefly.  
(1)	Proportionality
 	That is not an issue here.  Any remedies hearing is likely to be one day or less.  
(2)	Passage of time 
Evidence was heard going back over several years and there must be difficulties of recollection.  
(3)	Bias or partiality
(4)	A totally flawed decision.  For the reasons we have given, we regard this decision as totally flawed.
(5)	Second bite.  There must be a real danger in this case that the Tribunal would attempt a second bite at the cherry, and reiterate its original decision, albeit in a different form.
(6)	Tribunal professionalism.  We do not criticise the Employment Tribunal, which clearly acted in a professional and careful manner.  The fact of the matter is that the Tribunal has made a serious error of law.    

32.		For those reasons, we think justice would properly be done by ordering this case to be remitted to a fresh Employment Tribunal to deal with the question of compensation.  Our order, therefore, will be to reinstate the claim against Dr Coates and order remission to a fresh Employment Tribunal to consider the question of compensation against her and compensation only.

33.	Finally, we were invited by Mr Martin to give guidance to Employment Tribunals in a case of this kind.  He made some very helpful submissions in his skeleton argument.  However, we have only had the benefit of his submissions.  This case has not been contested on appeal and we do not think it right, in the circumstances, that we should offer guidance without assistance from Counsel for both parties.  We therefore decline to do so.  What we can say is that this is in our experience a unique case where a Tribunal having found liability against a Respondent, has then made no award of compensation  when the circumstances require it but has gone on to dismiss the claim against that particular respondent.  We hope that there will be no other such cases.