United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1051_93_1303

Appeal No. EAT/1051/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 March 1995

Before

THE HONOURABLE MR JUSTICE BUCKLEY

MISS A MACKIE OBE

MRS T MARSLAND

---

SECURICOR HOTELS LTD          APPELLANTS

MRS B THOMSON          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR T J A HOOPER

(Of Counsel)

Legal Department

Securicor Ltd

Sutton Park House

15 Carshalton Road

Sutton

Surrey

SM1 4LD

For the Respondent MR R de MELLO

(Of Counsel)

Coventry Law Centre

The Bridge

Broadgate

Coventry

CV1 1NG


 


MR JUSTICE BUCKLEY: In 1992 Mrs Thomson the Applicant was employed by Securicor Hotels Ltd albeit briefly. She was dismissed on 6 June of that year and took her case to the Industrial Tribunal in Birmingham which decided in April of that year that the reason for dismissal was for a gender-based illness and that this constituted direct sex discrimination under Section 1A of the Act, I quote from their reasons. By a later decision on 29 November the Tribunal awarded her a total of £4,570.28 by way of compensation, £3,500 of that was by way of compensation for hurt feelings or injury to her feelings. That element of the compensation is what prompted this appeal by the Respondents.

The award was made bearing in mind Section 66 sub-section 4 of the 1975 Act and there is no challenge to the Tribunal's right to include in their award an element for injury to feelings, but Mr Hooper on behalf of the Appellants has submitted that the figure is far too high. We were referred to a number of cases roughly on this or closely related topics which we have not really found a great deal of help on the sole question that we have to consider and that is the size of this award or this element of the compensation but one or two points of principle or at least guidance do emerge. The first one and to our minds the central point is this, that the Tribunal must keep in mind that this head or element of the compensation is for the hurt or affront which arises from the knowledge that the individual has been discriminated against. Now that is important in this case because Mrs Thomson had a very difficult and upsetting time. She first of all attended hospital on 7 May as an emergency and was told that she had miscarried and had a minor operation. She was only off a few days as a result of that and returned to work only to receive an urgent call from the hospital summoning her back when she was told that the examination had shown that she had an ectopic pregnancy and had to undergo a further operation to deal with that.

It must be borne in mind that compensation for hurt feelings in accordance with the principle we have identified does not cover the pain or stress which undoubtedly Mrs Thomson would have suffered from such an experience. Secondly the Court of Appeal has suggested and we accept that compensation under this head in a general sense, should be restrained. Thirdly this head of compensation is not intended to include any element of deterrence or punishment aimed at the employers. It is even more obvious that it is not intended to cover lost wages or future prospects or anything of that sort, all of which may properly be compensated other wise.

Mr Hooper for the Appellants submitted and we do no more than summarize, that if we focus as we should on the first principle which we have annunciated, we would come to the conclusion that the £3,500 awarded here was far too high. Mr de Mello who has appeared for the Applicant before the Tribunal, that is Mrs Thomson, whilst generally opposing

Mr Hooper's submission made two points in particular that we think worth mentioning. The first was that we should take the employee in this case Mrs Thomson as we find her, by which he meant that the employers must take her as they found her at the time and that because of the very unfortunate and upsetting sequence of events which we have described, she would have been in a very vulnerable condition and her feelings the more ready to be hurt. The second point Mr de Mello urged was and this was prompted by a submission of Mr Hooper's on the length of employment, was that the length of employment in this case very short, should not or at least should not unduly reduce or moderate the award because at the end of the day the injury to feelings was there, whether the employee had been in employment for a week or a year or longer. Now to a large extent we have accepted those submissions, no doubt Mrs Thomson was in a condition in which her feelings were more delicate and quite understandably so. The length and circumstances of employment by the particular employer could inflame or exacerbate the act of discrimination in a general sense but we must keep in mind the central point which we have already described. It does seem to us at the end of the day that this aspect, namely length and circumstances of employment whilst it is a relevant consideration, must play a subordinate part to the central issue which is the extent to which feelings have in the circumstances been hurt.

On that we have of course kept in mind the findings of the Tribunal. These are set out in essentially paragraph 3 of their award and they found as a fact that the injury caused to Mrs Thomson's feelings was not fanciful or nominal they found it was substantial. They found this particular employer acted with considerable insensitivity and that Mrs Thomson when she read the letter of dismissal was shattered and they went on to make their award. We of course are not hear to review findings of fact, we do wonder whether the Tribunal in reciting those circumstances in paragraph 3 perhaps lost sight a little of the central principle which we have identified, because the insensitivity and the description of the Applicant's feelings being shattered are clearly something which could be related at least in part not to the fact of discrimination but to the very unfortunate sequence of events to which

Mrs Thomson was subjected.

In the result we have to look at this matter in the round and form a view as to the proper and appropriate level of damages and we have concluded that the award of £3,500 was far too high and sufficiently so to prompt interference by this Tribunal. It is accepted by both parties before us that we would not lightly intervene on the question of quantum. We have been referred to the various phrases that have fallen from the Court of Appeal in personal injury cases as to the circumstances in which that court will interfere with judges findings of damages in personal injury cases. We see no reason not to adopt a similar approach by which we mean that we do not just substitute our own figure but we only interfere if we really do feel and are satisfied that the Tribunal has gone significantly wrong.

The figure that we consider would be appropriate here is £2,500. That we feel would be a reasonably generous award that would adequately have reflected the very unfortunate circumstances of this case, so far as it is proper to do so in accordance with the principles that we have mentioned. We would therefore allow this appeal and direct the figure of £2,500 to be substituted for £3,500. There was a cross-appeal an amended cross-appeal and so forth in this matter which have all happily fallen away and our finding on that one central point therefore resolves the matter. That is the end of our judgment. Before leaving this matter we must say that subject to any further comment from Counsel, we do find it more than a little extraordinary that the cross-appeal and the answers to it and the skeleton argument have all proceeded over the time they have in focusing very largely on this question of interest and the regulations, when all the time there was in existence this order from the Tribunal itself dated 2 December 1993, making it perfectly plain that they have awarded interest and consequently that completely undermines the substance of the further matters that have been going on in this Appeal. We do not know unless we are told who had this letter and for how long, but it must have been sent presumably to both sides. How it comes about that their representatives have been at each others throats so to speak on this question of interest and the regulations and engendered quite a lot of paperwork in relation to it, in the light of that, we cannot at this moment understand. How is it that only at the last minute before us, Counsel are in a position to produce it so that the rest of the dispute fell away? Unless either party wishes to say anything on that we can only express our surprise and that is a euphemism.