United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 95_95_0311

Appeal No. EAT/95/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11th October 1995

Judgment delivered on 3rd November 1995

Before

THE HONOURABLE MR JUSTICE MORISON

MR P DAWSON OBE

MISS C HOLROYD

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MRS A M ORLANDO          APPELLANT

DIDCOT POWER STATION SPORTS & SOCIAL CLUB          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MS I OMAMBALA

(of Counsel)

Equal Opportunities Commission

Overseas House

Quay Street

Manchester

M3 3HN

For the Respondents MISS JOANNE HEAL

(of Counsel)

Messrs Cole & Cole

Solicitors

Buxton Court

3 West Way

Oxford

OX2 0SZ


 


MR JUSTICE MORISON: Mrs Orlando was employed by the Didcot Power Station Sports and Social Club "the Club" as a part-time barmaid from 1980 until 19 May 1994, when she was dismissed. The Club admitted that her dismissal was unfair. At a hearing to determine remedy, Mrs Orlando informed the Industrial Tribunal that she wanted compensation for injury to her feelings. Having been told that such was not a permissible head of compensation under the 1978 Act, she was given leave to amend her complaint to make a claim under the Sex Discrimination legislation, it being her case that she was dismissed because she was pregnant (she gave birth to a daughter on 8 August 1994). Having had a relatively short time in which to consider their position, the Club indicated that they were prepared to admit, also, that Mrs Orlando had been discriminated against by them on the grounds of her sex. Accordingly, the Tribunal were entitled to consider the question of compensation for injury to her feelings. Under this head, she was awarded £750; to which was added a basic award of £752.90 and a compensatory award (in total) of £637.

Although Mrs Orlando appealed against both the award for injury to feelings and the compensatory award, the argument before us was confined to the correctness of the award for injury to feelings. In her appeal, Mrs Orlando has been supported by the Equal Opportunities Commission who have a legitimate interest in ensuring that awards under this head fairly and fully reflect the injury to victims of discrimination. We are grateful for the arguments by both parties to the appeal, and for the concise way in which they were expressed by counsel.

Essentially, on behalf of the appellant, three submissions were advanced:

1. In arriving at their conclusion, the Industrial Tribunal had regard to the case of Noone v North West Regional Health Authority [1988] IRLR 195 CA, which was decided prior to the abolition of limits on awards under the Sex Discrimination legislation - Sex Discrimination and Equal Pay (Remedies) Regulations 1993 which came into effect on 22 November 1993. The appellant says that the amount of the award for a severe injury to feelings which the Court of Appeal considered appropriate was pitched on the basis that the upper limit for compensation for all heads of damage and loss was £7,500. Had the cap not been there, the award would have been higher, and the Industrial Tribunal were not cognisant of this point when they made their Decision.
2. The Industrial Tribunal erred in having regard to the fact that the appellant's position was part-time. Being a part-timer is not relevant to the level of award for injury to feelings and Industrial Tribunals should be wary of making generalised assumptions of this sort, especially where, perhaps as a result of long-standing institutionalised discrimination, very many more women than men have part-time employment.
3. The award was perverse. On the facts of this case, no reasonable tribunal properly directing itself could have arrived at an award which was less than £1,000. The proper bracket for such an award in this case was, it was argued, between £1,000 and £2,000.

In support of her submissions, counsel for the appellant provided us with a feature article in the September/October 1994 issue of the Equal Opportunities Review. This article reviews awards made in sex and race discrimination cases and compares awards on a number of different bases. We can see that there were 137 cases of sex discrimination in which Industrial Tribunals made awards in the calendar year 1993. The median award for injury to feelings was £1,000: that is, as many people received such an award below that figure as received an award above it. It would appear that the average level of such an award had increased by some 13% over the previous year.

A comparison has been made between 111 awards made before the cap was removed (1 January 1993 to 21 November 1993) and 130 awards made after the cap was removed (22 November 1993 to 30 June 1994). Over half of the 130 awards were made in relation to women who had been dismissed from the armed services due to pregnancy. Guidance about awards in such cases was subsequently given by the EAT (Ministry of Defence v Cannock & Others [1994] IRLR 509). From the comparison, if the MOD awards are included, the median award has risen to £1,500; but if they are excluded, the median has remained at £1,000. It will be borne in mind that in the MOD cases the complainant not only lost a job but also, in many cases, lost a career and a way of life in service quarters and, therefore, the awards for injury to feelings might be expected to be somewhat higher than in other cases, where such a feature was not present. We are not convinced that, as yet, there is any sufficient pattern of awards for Industrial Tribunals to be greatly assisted in seeking to 'slot' a case into its appropriate place: it is for this reason, we think, that the statistics are so sensitive to the inclusion or exclusion of awards in the MOD cases.

We turn therefore to our conclusions on the arguments presented to us:

4. We are not persuaded that the Court of Appeal was so linking the amount of an award for injury to feelings to the then limit on compensation that it can be legitimately argued that without the limit the award would thereby have been higher. The Court of Appeal, in the judgments, did not seek to allocate the available monies (£7,500) between injury to feelings and other items of loss; indeed such an exercise could not have been done. Nor do we think that the Industrial Tribunal, in this case, had overlooked the context in which the Noone decision had been made. On the contrary, we are confident that the Industrial Tribunal would have had in mind the abolition of the limit, which had occurred over a year before their decision and 5 years after Noone. We read their reference to Noone in paragraph 5 of the Decision as being no more than an indication that they were well aware that such an award was to be made in accordance with the same rules as apply to awards for damages for personal injuries in respect of any other breach of statutory duty: see May LJ at page 825E-F. On the statistical material available, for what it is worth, Industrial Tribunals have not felt it right to increase awards for injury to feelings simply because of the removal of the cap. If the appellant's argument were correct, presumably almost every such award would be wrong in law. We disagree. What an Industrial Tribunal must do, and what it plainly did in this case (see paragraphs 3 and 4 of the Decision) is to weigh the evidence and form a view as to the level of distress and humiliation that the applicant has shown to have been caused to her by the acts of discrimination, having regard to all the circumstances of the case. We reject the argument that the Industrial tribunal misdirected itself in law.
5. Whilst we agree that all tribunals should be cautious about making generalised assumptions, it does not appear to us that this Tribunal has done so. The relevant circumstances to which a Tribunal must have regard will include the nature of the lost employment. A person who unlawfully loses an evening job may be expected to be less hurt and humiliated by the discriminatory treatment than a person who loses their entire professional career. That will not always be so; partly because of the principle that the wrongdoer must take the victim as he or she is. A vulnerable person who has lost what might have appeared at first sight to be an easily replaced evening job may suffer more hurt than a resilient person who loses a career. But it is going too far, we think, to suggest that this is not a relevant circumstance, although we emphasise that the compensation is based upon the discrimination rather than the loss of the job per se, for which other compensation is available. The Tribunal did no more than refer to the fact that she had been humiliated in the context of being dismissed from her part-time job. They noted her evidence that she loved the job, was good at it and made many friends through it. All these were matters the Tribunal was properly entitled to take into account, and in our judgment the Tribunal has made no generalised assumption: rather it has applied its mind to the particular facts of the case before them. We should add that in assessing the injury to feelings the willingness of the respondent to admit that he has acted in breach of the discrimination legislation may well help to reduce the hurt which is felt. Here, the employers made such an admission almost immediately after the allegation had been made against them for the first time. Mrs Orlando was, therefore, spared the indignity and further hurt of having to rehearse the nature of her treatment by the Club, which she found so unacceptable. In some cases a Tribunal might find that an admission, or a finding in the complainant's favour, together with an appropriate award, will put an end to any continuing or further sense of hurt and outrage.
6. It seems to us that the submission that this award was perversely low can be seen to be misconceived from the further submission that the least sum that could be awarded was £1,000. An award of £750 was probably the figure which would next have been awarded below £1,000, because Tribunals are likely to reflect the fact that there is no precise calculation which can be made and award what is a rounded figure: £500, £750 then £1,000 may well be the sort of figures a Tribunal will have in mind, although, it goes without saying, that it is for the Tribunal to choose whatever figure they think reflects full compensation for this head of injury. If £1,000 would have been unappealably correct we are not convinced that it could ever be said that an award which was somewhat lower was perverse. Further, if, aside from the Services cases, as many victims are receiving less than £1,000 than receive more, we fail to understand the basis for this submission. It would appear that the EOC wishes to argue that in a pregnancy dismissal case the median figure should be treated as the minimum figure; but that would be to misuse the statistics.

Each of the members of the Appeal Tribunal, having regard to the Tribunal's findings, would have said that the bracket in this case would have been between £750 and £1,000.

The Industrial Tribunal's award cannot be faulted: it was an entirely appropriate award. Accordingly, this appeal will be dismissed.