COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL
TRIBUNAL( MR JUSTICE WALL)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE JONATHAN PARKER
| MS ANGELA VENTO||Appellant|
|- and -|
|THE CHIEF CONSTABLE OF WEST YORKSHIRE POLICE||Respondent|
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR DAVID BEAN QC & MR DAVID JONES (instructed by West Yorkshire Force Solicitor's Department) for the Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Mummery : This is the judgment of the Court.
Proceedings in the Employment Tribunal
"Drawing together the applicant's determination, changing social conditions and the desire to provide for her children, we have decided that there was a 75% chance that the applicant would have completed a full Police career had she not been dismissed."
"…we should calculate future loss by taking the sum which the applicant would have earned had she remained in the Police, deducting from that sum the amount that she had, or should have, earned elsewhere and applying a percentage discount to the net loss to reflect the chance that the applicant might have left the Police Force in any event."
"..it is fair to say that the applicant has been put through four traumatic years by the conduct of the respondent's officers. The process started with the bullying of her in January 1997. That contributed to her clinical depression diagnosed in May of that year. It reached its zenith with the July tutorial, following which the applicant went off sick. When she returned to work in October, she faced the two case conferences at the beginning and end of November. She then had the shock and disappointment of dismissal in December, followed by these proceedings which were started in February of 1998. She had to prepare herself for a hearing in June which was aborted after three days. It took another 13 months to get the case back here for a hearing, at which the applicant's private life was subjected to minute scrutiny. The legal process attracted media attention, which exacerbated the blackening of the applicant's character. Having been vindicated by our decision, the applicant then faced the uncertainty of the appeal. Even then, she was unable to put this matter behind her, having to wait until now for our decision on remedy with the prospect of having to give evidence yet again. Finally, she lost a satisfying and congenial career. For all that, and the other matters described above by the applicant, we think that £50,000 is an appropriate sum to award."
"We find also that the respondent and his officers have throughout acted in a high-handed manner. First, they unreasonably condemned the applicant as dishonest. They raised questions about her private life, which had little or nothing to do with her conduct or capability as a police officer. They persisted in those matters throughout these proceedings until the appeal was lost. The respondent then made what we regard as a cynical offer of reinstatement principally designed to limit the financial damage to the respondent's resources. The apology from the respondent came very late in the day. There has been no apology from the five officers who are the subject of our second recommendation. The Deputy Chief Constable attended the hearing not having read our decision or that of the Employment Appeal Tribunal and, therefore, not really knowing for what he was apologising on behalf of the respondent. We characterise the respondent's attitude and that of his officers to this case as one of institutional denial, that is a refusal to see that supervising officers had throughout treated the applicant unreasonably, a refusal or inability to see that a view of the applicant's sexual morality had improperly coloured officers' judgments and a failure to ask the fundamental question as to why these things had happened. In all those circumstances, we have decided that the award for injury to feelings should be increased by a further sum of £15,000 on the account of aggravation. The aggregate is £65,000 which we note is about three times a police officer's current annual gross salary."
"Finally, whilst the medical experts acknowledge that it is sometimes difficult to disentangle injury to feeling and psychiatric damage, we think it is possible to do so in this case. We have found that the conduct of the respondent's officers contributed to the applicant's clinical depression in the Spring of 1997. Furthermore, the whole experience has left the applicant with an adjustment disorder which has lasted more than 3 years. Fortunately, the prognosis is good. In reaching our decision on this head of damage, we have looked at the Judicial Studies Board's Guidelines for the Assessment of Damages in Personal Injury Cases. In particular, we have looked to damages for both psychiatric damage generally and post-traumatic stress disorder. We find that, in either category, this case falls within the moderate range. In the case of psychiatric damage, that is defined as a situation where there would have been a marked improvement by now in the applicant's ability to cope with life and work, the effect on her relationships with family, friends and those with whom she comes into contact, the extent which treatment has been successful and future vulnerability. In the second category, the injured person will have largely recovered and any continuing effect will not be grossly disabling. The combined range is £3,000 to £10,000. Given the length of time over which the applicant has suffered from the adjustment disorder, we think this case falls within the upper end of the bracket and we assess damages under this head in the sum of £9,000. "
The Employment Appeal Tribunal
"16...... We have no doubt at all that the Tribunal fell seriously into error in assessing the Respondent's future loss of earnings on the basis of a 75% chance of her serving in the police force to the age of her retirement. She had in fact served less than two years as probationer. The vicissitudes she had undergone during that period were by no means entirely due to the treatment she received at the hands of the Appellant. As recorded in paragraph 14 above, the respondent had suffered from a depressive illness, largely consequent upon the breakdown of her marriage; she had been off duty through illness and at times her work had not achieved an adequate standard.
17... On the statistical evidence, only 9% of women serve more than 18 years. Even taking into account the fact that the Respondent was unable to have any more children, and making full allowance for the social changes which had occurred since some of the women who were the subject of the survey had begun their police careers, we can see no proper basis upon which the Tribunal could have been justified in departing so radically from the figure of 9% in order to reach the finding that the Respondent stood a 75% chance of remaining in the Police Force until retirement. Even if the figures for men are adopted, for which it would be difficult to find a rationale, the chance does not exceed 50%.
18... We have set out the passage in the Tribunal's reasons which contains the explanation it gives for its assessment of the Respondent's chance of completing a full police career. That passage, in our judgment, does not give any adequate reason for departing from the figure of 9% and reaching 75%. Accordingly, both the size of the award and the lack of sound reasons to support it represent, in our judgment, errors of law sufficient to make it necessary for the award under paragraph (ii)(a) of the decision to be set aside. At the same time, we plainly do not have the material upon which to make the appropriate assessment, and it will be necessary for this part of the case to be remitted to a freshly constituted Tribunal for the figure under this head to be reassessed."
"35. In our judgment, the overwhelming weight of authority cited by Mr Bean and Mr Jones demonstrates that the award made by the Tribunal for injury to feelings in the sum of £65,000 (to include £15,000 for exemplary (sic) damages) is well outside the range which any Tribunal properly directing itself to those authorities would have made. Ironically, two of the cases most important are Armitage and Tchoula both of which are cited by the Tribunal, but neither of which, in our judgment, is applied by it. Since we take the view that the award of £65,000 is plainly wrong, and as we have the material upon which we can form our own assessment, this is what we propose to do.
36. The case most in point seems to us to be Armitage. There, the applicant received £21,000 and £7,500 for aggravated damages. For the reasons which they give, we do not think it unreasonable for the Tribunal in the instant case to have made an award of aggravated damages although we think the figure excessive. Given that Armitage was decided in 1997, and given also that we think the figure for exemplary damages manifestly excessive, we have come to the conclusion that the proper awards here are £25,000 for injury to feelings, £5,000 for agravated damages, and £9,000 as found by the Tribunal for personal injuries. This is, approximately, a little over half the global award made by the Tribunal, and in our judgment is in line with the authorities on these three heads."
The Role of the Court of Appeal
"It is too often forgotten that, in the context of appeals from the Employment Appeal Tribunal, the Court of Appeal is a second tier of the appellate court... second tier appellate courts are primarily concerned with the correctness of the trial court's decision."
See also Campion –v- Hanworthy Engineering Ltd  ICR 966 and Walls Meat Co Ltd –v- Selby  ICR 601. This position stems from the relevant statutory provisions governing appeals from the Employment Tribunal.
"(1) An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an Employment Tribunal by virtue of
(b) the Sex Discrimination Act 1975
(f) the Employment Rights Act 1996."
"(1) For the purpose of disposing of an appeal, the Appeal Tribunal may –
(a) exercise any of the powers of the body or officer from whom the appeal was brought, or
(b) remit the case to that body or officer.
(2) Any decision or award of the Appeal Tribunal on an appeal has the same effect, and may be enforced in the same manner, as a decision or award of the body or officer from whom the appeal was brought."
"(1) Subject to subsection (3) [which is not material], an appeal on any question of law lies from any decision or order of the Appeal Tribunal to the relevant appeal court with the leave of the Appeal Tribunal or the relevant appeal court.
(2) In subsection (1) the " relevant appeal court " means
(a) in the case of proceedings in England and Wales, the Court of Appeal..."
(1) In relation to an appeal the appeal court has all the powers of the lower court."
The "lower court" is defined in Part 52.1(3)(c) as meaning
"the court, tribunal or other person or body from whose decision the appeal is brought..."
Part 52.11 provides that
"Every appeal will be limited to a review of the decision of the lower court unless
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing."
Compensation for future loss of earnings: the general approach
Submissions of the C hief Constable
Conclusion on future loss of earnings
Compensation for Injury to Feelings: the Law
"(1) Where an employment tribunal finds that a complaint presented to it under section 63 is well founded the tribunal shall make such of the following as it considers just and equitable –
(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…to pay to the complainant if the complaint had fallen to be dealt with under section 66.."
"(1).....may be made the subject of civil proceedings in like manner as any other claim in tort.....
(4) 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."
"… is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution."
"(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham MR, be seen as the way to "untaxed riches". (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think that this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. (iv) In exercising that discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. (v) Finally, tribunals should bear in mind Sir Thomas Bingham's reference for the need for public respect for the level of awards made. "
i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.
ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.
iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.