Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS: 24/14 FET

1608/13

1942/13

 

 

 

CLAIMANT: Fiona McGeady

 

 

RESPONDENT: North West Regional College

 

 

DECISION ON REMEDY

 

The unanimous decision of the Tribunal is that the respondent is ordered to pay to the claimant, by way of remedy, an award of compensation in the sum of £13,018.99 on foot of the Tribunal's decision on liability, as set out in the Decisions issued to the parties and recorded in the Register on 12 May 2015 and 19 June 2015, that the claimant was discriminated against by the respondent by way of victimisation, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 and the Fair Employment and Treatment (Northern Ireland) Order 1998.

 

Constitution of Tribunal:

Employment Judge Employment Judge Drennan QC

Members: Mr P Killen

Mrs A Gribben

 

Appearances:

The claimant was represented by Mr P Moore of PM Associates.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Jones Cassidy Brett, Solicitors.

 

Reasons

 

1. At this hearing to determine remedy, the Tribunal invited the representatives to call any further evidence; but each declined to do so. The Tribunal was helpfully assisted by the written and oral submissions of the claimant's representative and the oral submissions of the respondent's representative.

 

2. Relevant law

 

2.1 Article 39 of the Fair Employment and Treatment (Northern Ireland) Order 1998 ('the 1998 Order):-

 

"(1) Where the Tribunal finds that a complaint presented to it under Article 38 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 Article 40;

 

...

 

(2) In applying Article 40 for the purposes of paragraph (1)(b), no account shall be taken of paragraph (3) of that Article."

 

Article 40 of the 1998 Order:-

 

"(4) Damages in respect of an act of unlawful discrimination may include compensation for injury to feelings whether or not they include compensation under any other head."

 

2.2 In an appropriate case, it has long been held that a Tribunal, in addition to making an award of compensation for injury to feelings, can also make an award of compensation for personal injuries caused by discrimination which results in psychiatric damage or actual physical injury. Where psychiatric and/or physical injury can be attributed to the unlawful act the Tribunal has jurisdiction to award compensation but subject to the requirements of causation being satisfied (see  Sheriff v Klyne Tugs ( Lowestoft) Ltd [1991] IRLR 481). In HM Prison Service v Salmon [2001] IRLR 425, it was held, in principle, injury to feelings and psychiatric injury are distinct but, in practice, the two types of injury are not always easily separable, giving rise to a risk of double recovery. Injury to feelings can cover a very wide range and can include matters which may not be sufficient to come under the heading of, for example, psychiatric injury. Insofar as an award of compensation for personal injury is relevant, the Tribunals have the assistance/ guidance of the ' Guidelines for Assessment of General Damages in Personal Injury Cases' ('the Green Book') now in its 4 ^th edition published by the Judicial Studies Board of Northern Ireland, on 4 March 2013. The Green Book has been regularly updated to reflect relevant changes, including RPI changes. This 4 ^th Edition is specifically intended, as set out in the Foreword, to reflect current values, as of 4 March 2013, and has not factored forward any notional increase for future current values, as occurred in previous editions (see later).

 

2.3 It has long been established that awards for injury to feelings must be compensatory and not punitive (see Ministry of Defence v Cannock [1994] IRLR 509; and Armitage, Marsden and HM Prison Service v Johnson [1997] ICR 275. Further, a claim for injury to feelings requires evidence as to that injury (see Esporta Health Clubs v Roget [2013] EqLR 877. As confirmed in HM Land Registry v McGlue [UKEAT/10435/11] an Employment Tribunal's feelings of indignation and outrage towards an employer should not be allowed to inflate any such award. The Tribunal could find no authority for the submission of the claimant's representative's that, in relation to an award of compensation for injury to feelings arising from discrimination by way of victimisation, the award could be punitive rather than compensatory. Indeed he could not refer to any relevant authority for this submission. Indeed, the Tribunal is satisfied the above authorities confirm awards for all types of discriminations are compensatory and not punitive. Of course, on the facts, the evidence may show the greater injury to feelings because of the particular nature of the unlawful discrimination, such as victimisation (see BT Plc v Reid [2004] IRLR 327). However, as Underhill J, as he then was, confirmed in Abbey National and Hopkins v Chagger [2009] ICR 624, which was not disapproved by the Court of Appeal:-

 

"There is nothing in the statute to suggest discrimination is to be treated as a specially heinous wrong to which special rules of compensation should apply."

 

(See later in relation to aggravated damages.)

 

2.4 In Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 three broad bands of compensation for injury to feelings were identified, which were subsequently uprated in line with inflation as measured by the RPI in Da'Bell v NSPCC [2010] IRLR 19 - with the result that the bottom band was increased from £5,000.00 to £6,000.00; the top of the middle band was increased from £15,000.00 to £18,000.00; and the top of the higher band was increased from £25,000.00 to £30,000.00. It held the middle band should be used for serious cases, which do no merit an award in the highest band. The top band was appropriate in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment. It would only be in the most exceptional case that an award for injury to feelings exceeds £30,000.00 (following Da'Bell).

 

2.5 In a number of recent decisions of the Employment Appeal Tribunal a conflict has arisen whether the 10% uplift to general damages in the Civil Courts, as set out in the decision of the Court of Appeal in Simmons v Castle [2013] IWLR 1239, should be applied to the amended Vento guidelines.

 

In Ms Pereira de Souza v Vinci Construction UK Ltd [2014] UKEAT/0328, it was held the uplift identified in Simmons did not apply to Employment Tribunals awards; whereas in the case of The Cadogan Hotel Partners Ltd v Mr Ozog [2014] EqLR 691 and in the case of Sash Window Workshops Ltd v King [2014] UKEAT/0057/14 it was held the said uplift should be applied to Employment Tribunal awards. In the most recent decision of the Employment Appeal Tribunal, Mrs Justice Slade in Chawla v Hewlett Packard Ltd [2015] UKEAT/0280/13, has concluded the said uplift of 10% in Simmons v Castle does not apply to claims for injury to feelings in Employment Tribunals. It is understood the case of De Souza may be heard by the Court of Appeal in England and Wales in due course; after leave to appeal was granted by the Employment Appeal Tribunal.

 

2.6 This Tribunal noted that, in her review of the authorities, Mrs Justice Slade in Chawla, referred, with approval, to the decision of Mr Justice Underhill, as he then was, in the case of Bullimore v Pothecary Witham Weld (No 2) [2011] IRLR 18, in which he stated, inter alia, after considering Da'Bell:-

 

"31. As a matter of principle, Employment Tribunals ought to assess the question of compensation for non-pecuniary loss in 'today's money'; and it follows that an award in 2009 should - on the basis that there has been significant inflation in the meantime - be higher than it would have been had the case been decided in 2001. But this point of principle does not require Tribunals explicitly to perform an uprating exercise when referring to previous decided cases or to guidelines such as those enunciated in Vento. The assessment of compensation for non-pecuniary loss is simply too subjective (which is not a dirty word in this context) and too imprecise for any such exercise to be worthwhile.

 

Guideline cases do no more than give guidance and any figures or brackets are necessarily soft edged 'uprating' such as occurred in Da'Bell is a valuable reminder to take inflation into account when considering awards in previous cases; but does not mean that any recent previous decision referring to such a case which has not expressly included an uprating was wrong."

 

Mrs Justice Slade pointed out the increase, in guideline figures by 10%, was decided by the Court of Appeal, because of the changes to the civil costs regime following the review of civil litigation costs by Sir Rupert Jackson. In that report, it was noted the different costs regime in Employment Tribunals, but also that claims to the Employment Tribunal were not a type of litigation dealt with in the report. In these circumstances, Mrs Justice Slade concluded the 10% uplift identified in Simmons did not apply and Employment Tribunals should follow the principles seen in Da'Bell and Bullimore; namely, that the assessment of non-pecuniary loss should be in 'today's money'.

 

The contrary view seen in Ozog and The Sash Window Workshop Ltd that the uplift identified in Simmons does apply was largely based on the fact that discrimination is a statutory tort and compensation under the discrimination legislation in Great Britain (and also in Northern Ireland) for this statutory tort is required to be the amount that could be awarded by a County Court; and, in such circumstances, there was no basis for limiting the 10% increase to all torts save for the tort of discrimination. Mrs Justice Simler, in Sash Windows, noted the Lord Chief Justice, Lord Judge, in his judgment in Simmons after referring to the Jackson Reforms, had said that the uplift formed part of a coherent package of reforms, of which it was one part, but also made it clear ' the increase in general damages we are laying down here extends to tort claims other than personal injury actions'. However, it was also acknowledged by Mrs Justice Simler that Da'Bell was in 2010 and therefore some time ago. Clearly, in the intervening period, this Tribunal recognises there has been some inflation and change in the value of money, albeit arguably not as great as in earlier years.

 

2.7 It is apparent from the foregoing, given the various conflicting decisions of the Employment Appeal Tribunal, there will, in time, require to be a decision of the Court of Appeal in England and Wales to resolve this issue. In Northern Ireland, the decisions of the Employment Appeal Tribunal and the Court of Appeal in England and Wales and Court of Session in Scotland are not binding on this Tribunal but are generally persuasive, in the absence of any contrary decision by the Court of Appeal in Northern Ireland and, in particular, where similar legislation is to be applied. Indeed, the Vento / Da'Bell decisions have been followed in Northern Ireland. However, in view of the conflicting decisions of the Employment Appeal Tribunal, and the absence of any Court of Appeal decisions in Northern Ireland, it was necessary for the Tribunal to determine this issue for itself, having taken into account the said conflicting decisions of the Employment Appeal Tribunal.

 

2.8 This Tribunal found of significance that the uplift identified in Simmons arose in the context, in part at least, of the Jackson Reforms, which do not apply in Northern Ireland and, in any event, the report did not deal with Employment Tribunal litigation. In these circumstances, the Tribunal concluded it was not appropriate to apply the 10% uplift identified in Simmons, as confirmed in the decisions of Chawla and Ms Pereira de Souza, as set out above; and therefore not to follow the decision of Ozog and The Sash Windows Workshop Ltd. Rather, it decided that it should apply the guidelines as set out in Vento, as amended by Da'Bell but, insofar as appropriate, with reference to the 'current value of money' ( Bullimore) (see also 4 ^th Edition of Green Book).

 

2.9 In Alexander v The Home Office [1988] IRLR 190, it was held that compensatory damages may, in an appropriate case, include an element of aggravated damages where the respondent may have behaved in a 'high handed, malicious insulting or oppressive manner' in committing the act of discrimination.

 

In HM Land Registry v McGlue [2013] EqLR 701, it was made clear that such damages are not punitive and a Tribunal must not award under the hearing 'injury to feelings' damages for the self-same conduct as it then compensates under the heading 'aggravated damages'.

 

The Employment Appeal Tribunal held that, in order to determine whether such an award of aggravating damages is appropriate, a Tribunal has to look first as to whether, objectively viewed, the conduct is capable of being aggravating, that is aggravating the sense of injustice which the individual feels and injuring their feelings still further. It also acknowledged awards made by a Tribunal in respect of injury to feelings are not susceptible to close calculation.

 

It gave examples of situations where such an award of aggravated damages might be made where the distress caused by the discrimination has been made worse such as:-

 

"(a) by being done in an exceptionally upsetting way, eg in a high-handed malicious insulting or oppressive way;

 

(b) by motive : conduct based on prejudice, animosity, spite, or vindictiveness is likely to cause more distress provided the claimant is aware of the motive;

 

(c) by subsequent conduct - for example - where a case is conducted at trial in an unnecessarily offensive manner, or a serious complaint is not taken seriously, or there has been a failure to apologise."

 

In Ministry of Defence v Meredith [1995] IRLR 539, it was held, in order for aggravated damages to be granted, there must be a causal connection between the exceptional or contumelious conduct or motive in committing the wrong and the intangible loss, such as injury to feelings, suffered by the claimant. For the claimant to have suffered such aggravated hurt he or she must have had some knowledge or suspicion of the conduct or motive which caused that increase.

 

In McConnell v Police Authority for Northern Ireland [1997] IRLR 625, the Northern Ireland Court of Appeal, which decision is, of course, binding on this Tribunal, held an honest, if unfounded or even misguided, attempt by an employer to defend its actions should not generally be regarded as an aggravating element. Further, provided a claimant is treated with propriety in the proceedings, the fact his case may be challenged is an insufficient reason without more to regard the employer's conduct as aggravating the damages.

 

In McConnell, which was followed in Commissioner of Police of the Metropolis v Shaw [2011] UKEAT/0125, with approval, it was held aggravated damaged are compensatory only and represent an aspect of compensation for injury to feelings rather than a wholly separate head of damages, and it was better to include the aggravated features without separate quantification in the overall award for injury to feelings:-

 

"The final result of this assessment will be a single figure reflecting the total injury to his feelings, which may in an appropriate case include an element of aggravation ... to award damages under different heading risks duplication of damages or the introduction of an element of exemplary damages."

 

2.10 It has been established since the case of Essa v Laing Ltd [2004] IRLR 313 and Abbey National Plc v Chagger [2009] IRLR 86 that, as a general principle, the claimant ought to be compensated for damage which flows naturally and directly from the wrong in question, so as to be put back in the position that the claimant would have been in had the damage not occurred. If the damage was caused by the wrongful act, it is not necessary, in addition, unlike the approach in tort, to show the type of damage in question was reasonably foreseeable. This is, however, subject to any break in the chain of causation.

 

Further, in Thaine v London School of Economics [2010] EqLR 268, the Employment Appeal Tribunal held that where a Tribunal finds that the loss sustained by a claimant has more than one concurrent cause, one or more of which amounted to unlawful discrimination for which the employer is liable and others which were not the legal responsibility of the employer, it is legally open to it to discount an award of damages by such percentage as would reflect its apportionment of that responsibility.

 

2.11 This Tribunal has power to award interest on awards made in a case of discrimination by way of victimisation, pursuant to the 1998 Order, both in respect of pecuniary and non-pecuniary losses as set out in the Fair Employment Tribunal (Remedies) Order (Northern Ireland) 1995 ('the 1995 Remedies Order'):-

 

"Article 3 :

 

(1) Where ... a Tribunal makes an award under the [1998 Order] -

 

(a) it may, subject to and in accordance with this Order, include interest on any sum so awarded; and

 

(b) it shall consider, whether to do so, without the need for any application by a party in the proceedings.

 

... ."

 

"Article 7 :

 

(1) ... -

 

(a) in the case of any sum awarded under the [Remedies Order] for injury to feelings, any interest intended shall be for the period beginning on the date of the act of discrimination to which the award relates and ending on the day of calculation (both dates inclusive);

 

(b) in the case of all other sums of damage or compensation in the award ... any interest included shall be for the period beginning on the mid-point date and ending on the day of calculation (both dates inclusive).

 

...

 

(3) Where the Tribunal is of the opinion that in relation to an award under [the Remedies Order] -

 

(a) there are exceptional circumstances, whether relating to the case as a whole or to a particular sum in the award; and

 

(b) those circumstances have the effect that serious injustice would be caused if interest were to be awarded in respect of the period or period in paragraph (1) ...

 

it may -

 

(i) calculate interest, or as the case may be, interest on the particular sum, for such different period, or

 

(ii) calculate interest for such different periods in respect of various sums in the award;

 

as it considers appropriate in the circumstances, having regard to the provision of this Order."

 

There was no dispute between the parties the relevant rate of interest is simple interest at the judgment rate of 8% per annum.

 

If a Tribunal decides not to award interest or otherwise depart from the method of calculation provided by the Order, it is required to provide reasons (see Derby Specialist Fabrication Ltd v Burton [2001] ICR 833). In these proceedings, the respondent's representative, properly in the Tribunal's judgment, accepted that no issue of serious injustice arose and the Tribunal was entitled to award interest in accordance with the 'normal' method of calculation set out in the said provisions.

 

2.12 The relevant interest provisions relevant to a finding of discrimination by way of victimisation pursuant to the Sex Discrimination (Northern Ireland) Order 1976 ('the 1976 Order') are contained in the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 ('the 1996 Regulations'). The said Regulations are in the same terms as the 1995 Remedies Order and it was not therefore necessary to further consider these provisions. Further, in the Tribunal's decision on liability in the present proceedings, it found the respondent had discriminated by way of victimisation against the claimant, pursuant to the 1998 Order and the 1976 Order. As properly recognised by the representatives, there could not be 'double recovery' on foot of both Orders, in relation to the Tribunal's award of compensation on foot of the Tribunal's decision on liability. The Tribunal therefore applied, in the circumstances, the said interest provisions, pursuant to the 1995 Remedies Order, to the calculation of interest on the Tribunal's award of compensation. If it had been necessary to do so, the Tribunal would have applied the 1996 Regulations in the same way.

 

3.1 In light of the Tribunal's said decision on liability in these proceedings and the facts found by the Tribunal and the reasons set out therein, the oral and written submissions of the representatives, and after applying the legislative provisions and the guidance setout in the legal authorities, referred to in the previous paragraphs of this decision, the Tribunal reached the following conclusions, as set out in the following sub-paragraphs.

 

3.2 The Tribunal fully accepts, as did the respondent's representative, the claimant suffered injury to her feelings by reason of the discrimination by way of victimisation as found by the Tribunal in the said decision on liability. It further accepts the said injury to her feelings was greater having already suffered injury to her feelings arising from her earlier discriminatory suspension, as found by the Cross Tribunal in the decision recorded in the Register and issued to the parties on 6 February 2013. Again it must be noted, as set out in the decision on liability, that it was agreed by the parties, the relevant period for this complaint commenced on or about 23 February 2013; and, in particular, from 26 February 2013, when the Agnew Committee commenced the disciplinary hearing to consider the dismissal of the claimant for gross misconduct on foot of the three charges of alleged misconduct, namely:-

 

"1. You have taken a number of complaints against staff within the North West Regional College which have been made without sufficient grounds.

 

2. You failed to accept the findings determined by those charged with the responsibility to investigate and/or act as an appeal authority.

 

3. You have made it impossible for you to work in a collegiate way with colleagues and/or management within the school of hospitality, tourism and sport."

 

It must be recalled that, in finding the claimant was discriminated against by way of victimisation, as set out in the decision on liability, this only related to the first charge but not the second and third charge. The Tribunal is further satisfied that, although it made the said finding in relation to the first charge, there was clearly considerable overlap between the matters the subject-matter of that charge and the second and third charge. The Tribunal also accepted, in this context, there was considerable strength in the submission of the respondent's representative, that in addition to the degree of overlap there was also the fact the claimant was required to face all three charges and it was therefore probable that, even, if she had only faced the second and third charges, which were not discriminatory, she would still have been angry and upset. He further queried how much of that anger and upset would in fact have been increased by the necessity to face the first charge, the only charge which was discriminatory. The decision in Thaine was very different on the facts to the present proceedings; but the Tribunal was satisfied it was relevant authority for taking into account the above matters, when assessing the appropriate award for compensation for injury to feelings suffered by the claimant, and that any award made had to be discounted to reflect them. It was difficult, in the circumstances, and the particular matters referred to above, to arrive at a precise percentage discount, for example, as seen in Thaine. However, the Tribunal was satisfied that, if all three charges had been found to be discriminatory, the award made by the Tribunal, as set out later, would have been closer to the top of the middle band referred to in Vento (see later).

 

3.3 The Agnew Committee unanimously agreed, at the conclusion of the disciplinary hearing, to uphold the first and third charges and that the claimant's said conduct amounted to gross misconduct and an outcome of dismissal would be appropriate; but the Agnew Committee also concluded, inter alia, in its recommendation to the Governing Body:-

 

"Mrs McGeady is dismissed however the implementation of the dismissal decision is in abeyance [Tribunal's emphasis] until the College seeks specialist psychiatric opinion, relating to her current state of health. If medical opinion confirms Mrs McGeady is unfit for work and will remain unfit for the foreseeable future due to a mental health condition, the College will process termination on grounds of ill health [Tribunal's emphasis]. If medical opinion does not support ill health termination, then the decision to dismiss will be implemented immediately."

 

If the Agnew Committee had decided not to make any finding on the said disciplinary charges, pending any decision on the ill-health issue, the Tribunal would have concluded the injury to the claimant's feelings would have been significantly reduced. In the event, by making a decision on the said charges and that the claimant would be dismissed for gross misconduct if medical opinion did not support ill-health termination, it resulted in the claimant having the potential finding of dismissal for gross misconduct, based in part on the first charge, 'hanging over her', until the decision was ultimately taken by the Governing Body not to terminate the contract of employment on the basis of ill-health. Of course, as referred to previously, that decision to dismiss for gross misconduct related to charges one and three; but only the first charge was found to be unlawful.

 

The claimant was told by letter, dated 29 May 2013, the Governing Body intended to terminate the contract on the basis of ill-health, following receipt of relevant medical evidence; but, prior to implementing that decision, it gave the claimant an opportunity to present any relevant information, if she did not agree with the decision. There was then a meeting with the claimant; but it was not until the letter, dated 11 June 2013, from Mr Faulkner, the Chairman of the Governing Body, that it was confirmed to the claimant she was not to be dismissed for gross misconduct but her contract of employment was to be terminated on grounds of ill-health.

 

3.4 In the circumstances, the Tribunal was satisfied the relevant period, relating to this claim for an award for injury to her feelings was from 23 February 2013 to 11 June 2013. However, the Tribunal would accept that, although the decision to dismiss for gross misconduct had been put in abeyance and ultimately was not put into effect and the ill-health termination was substituted, the finding of gross misconduct was not itself expressly removed. Therefore, even at 11 June 2013, the Tribunal would accept there would have been remaining, for the claimant, some residual hurt; but it would have been of little significant continuing effect, given the decision not to dismiss for gross misconduct but to dismiss due to ill-health.

 

3.5 Taking all the above matters into account, the Tribunal came to the conclusion the appropriate award for injury to feelings fell within the middle band, as referred to in Vento, as amended in Da'Bell, and after taking into account the guidance of Bullimore, with its reference to the 'current value of money'. The Tribunal noted the Cross Tribunal in February 2013 had made an award of £7,500.00 without interest, of compensation for injury to health and injury to the claimant's feelings, arising out of the said suspension. The respondent's representative accepted, properly in the Tribunal's judgment, the award in the Cross Tribunal would be an appropriate 'starting point' for this Tribunal, when assessing the appropriate award in relation to the claimant's injury to feelings; albeit it must be noted the award was for injury to feelings and injury to health. In making the award the Cross Tribunal held that ' the amount of compensation for injury to feelings takes into account the psychiatric injury to the extent it was exacerbated by the suspension'. As set out below, this element of personal injury was not present in these proceedings.

 

As referred to previously, it is never an easy task for a Tribunal to assess the appropriate amount for an award to injury to feelings. This case was no different and it was made more difficult by the unusual factual circumstances referred to above relating, in particular, to overlap and that the ultimate decision to dismiss was for a reason unrelated to the said charges. Taking all the above matters into account, the Tribunal decided to make an award for injury to feelings in the sum of £10,750.00.

 

3.6 Although the Tribunal, as set out in the decision on liability, criticised the serious lack of understanding and knowledge of the respondent's witnesses in relation to this issue of victimisation and there is clearly a training issue which requires to be addressed by not only the administrative staff but also members of the Governing Body, this lack of knowledge and understanding confirmed to the Tribunal that it would not be appropriate to increase the said award for injury to feelings to include an award for injury to feelings to include an award for aggravated charges. The Tribunal was not satisfied there was evidence the respondent had behaved in a 'high-handed, malicious, insulting or oppressive manner', as set out in Alexander and McGlue. It also has to be noted that the charges had been formulated prior to the Agnew Committee disciplinary hearing on 26 February 2013 and the Cross Tribunal had expressly found the suspension to be the only relevant act of discrimination by way of victimisation. Although the Agnew Committee was the subject of criticism by the Tribunal, it was found by the Tribunal, in the decision on liability, the members had not been properly trained, in relation to the issue of victimisation. Also, it was the Agnew Committee, following the submissions of the claimant's trade union representative, who were persuaded to recommend to the Governing Body the ill-health dismissal after relevant and appropriate investigation of the claimant's medical position, which recommendation was ultimately accepted by the Governing Body, without any objection. To take this more compassionate view, in light of the submissions and the medical evidence, did not suggest to the Tribunal a respondent minded to aggravate the sense of injustice felt by the claimant and injure her feelings still further. Indeed, by acting as it did the Tribunal was satisfied it was the actions of a respondent attempting to reduce the hurt to the feelings of the claimant.

 

3.7 In relation to the claimant's claim for an award of compensation for personal injury, the claimant's representative was unable to point to any medical evidence given at the liability hearing, and which was admitted without formal proof, to support any such claim. In particular, there was no reference in the psychiatric report, prepared by Dr Peter Curran, Consultant Psychiatrist, and presented to the respondent on 14 May 2013, that there had been any exacerbation in the claimant's psychiatric illness in the period from 23 February 2013, the subject-matter of these proceedings, arisen naturally and directly from the unlawful act of discrimination by the respondent (see Essa v Laing Ltd). The Tribunal therefore refused to make any award of compensation for personal injury. Even if the Tribunal is wrong, the Tribunal believes any exacerbation, given the significant degree of overlap between the claimant's injury to feelings and any such exacerbation, would be already reflected in the award for injury to feelings, referred to above.

 

3.8 The claimant also made a claim for financial loss. The claimant was paid all earnings to which she was entitled up to the date of dismissal. In essence, her claim was for future loss. In the Tribunal's judgment, any such claim was misconceived and, in particular, failed to take into account the findings of fact made by the Tribunal in the decision on liability. It has to be noted in this context, in particular, the claimant's claim for unfair dismissal was dismissed for the reasons set out therein, and the reason for her dismissal was on the grounds of ill-health, for which she received a relevant pension, following that decision and not for gross misconduct arising out of the said charges.

 

4.1 The Tribunal considered that interest should be awarded, pursuant to the 1995 Remedies Order; and, in particular, that interest on the said award for injury to feelings should be from the date of discrimination ( on or about 23 February 2013) to the date of calculation ( 13 October 2015). As agreed, no serious injustice arose by the Tribunal awarding interest in accordance with the 'normal' method of calculation set out in the said provisions.

 

4.2 The Tribunal therefore made the following award of compensation:-

 

(i) Injury to feelings £10,750.00

 

(ii) Interest at 8%

from 23 February 2013 - 13 October 2015

962 days £ 2,268.99

 

Total £13,018.99

 

5.1 This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1992 and/or the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 28 September 2015, Belfast

 

 

Date decision recorded in register and issued to parties: