United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR THOMAS KIBLING (of Counsel) Mr M Javaid Commission for Racial Equality Elliot House 10-12 Allington Street London SW1E 5EH
For the Respondents	MS ELIZABETH LAING (of Counsel) Engineering Employer's Federation Broadway House Tothill Street London SW1H 9NQ


 


JUDGE JOHN BYRT QC: This is an appeal from a decision of the Industrial Tribunal sitting at Bedford. The decision appealed against is one which was promulgated on 24 February 1997 when the Tribunal held that Mr Khan, the Applicant, was entitled to £1,000 for loss of opportunity in the job market and injury to feelings. Mr Khan appeals that decision.

The facts, quite shortly, are that Mr Khan, who has a degree in environmental studies, with special interest in water and all aspects of its treatment, had worked as a technical sales representative and was computer literate. He saw an advertisement in the Northampton Job Centre in which the Respondents were seeking recruitment of a sales engineer. On 3 February  1996 he applied for the job and submitted his CV. The evidence has been that there were 19 applicants responding to the advertisement but of those 19 only 4 were selected for interview. It happens that all of them were white people. Mr Khan who is of Asian stock was not one of the four who were selected.

The Industrial Tribunal saw the CVs of the four candidates who were selected for interview and were of the view that only one of them had qualifications which compared to those of Mr Khan. The Industrial Tribunal looked to the Respondents for an explanation and that which was tendered they found did not withstand scrutiny. On that evidence the Industrial Tribunal found that, whilst discrimination against Mr Khan was not intentional, they were satisfied that he had been discriminated against on racial grounds and, in particular, in the arrangements made for determining who should be offered employment, that is, they found the claim under section 4(1)(a) of the Act had been proved.

They dismissed a claim that Mr Khan had not been offered the job because of racial discrimination, namely, a claim under s.4(1)(c) and in so dismissing it they said that it was just not possible for them to say what would have been the outcome if Mr Khan had been interviewed and in so saying they dismissed Mr Khan's claim that he should be compensated for future loss of wages.

Having found those facts they turned to the question of compensation and they awarded Mr Khan £1,000 for loss of opportunity of an interview and for injured feelings. They made no attempt to assess Mr Khan's lost chance of being appointed, limiting their award solely to the question of injured feelings and the lost opportunity of the interview..

Mr. Kibling has appeared before us on behalf of Mr Khan and argued two points. He first said that the Industrial Tribunal should have assessed the lost chance of Mr Khan not being appointed and he referred to the authority of the Ministry of Defence and Cannock [1994] ICR 918 as justification for the proposition that there was such a legitimate heading of claim.

The Industrial Tribunal does not have to make any findings of fact as to what would have happened if there had been an interview. It merely has to make an assessment of his chances and that is often best done by assessing a percentage chance that he had. But Mr Kibling says, in order to make that assessment, it would have been necessary to make findings of certain peripheral facts upon which to base such an assessment and then in their reasons the Industrial Tribunal would have had to set out those findings of fact and the reasoning upon which they base their assessment on those facts.

So far as the claim for the award of £1,000 compensation for injured feelings, Mr Kibling says that that is way too low. He referred us to the case of Sharifi v Strathclyde Regional Council [1992] IRLR 259 where the Industrial Tribunal had awarded £750 for injured feelings in respect of a claimant who they found had no prospects of receiving an appointment. The case went to appeal before the Employment Appeal Tribunal and the latter Tribunal said that £750 was too low and doubled the amount and awarded £1,500. Mr Kibling says that in this particular case there was no such finding that Mr Khan would not have been appointed and, accordingly, Mr Khan's case is stronger than that of Sharifi.

Ms Laing, for the Respondents, says in relation to the first issue that before the Tribunal can make an assessment that the Appellant has lost a chance of appointment, that chance has to be substantial and not a mere speculative possibility so small that it can be discounted. We do not understand that her submission disputes the fact that this is a legitimate heading of claim but she says that before the Tribunal can come to a finding based upon this particular heading it must be substantial and not merely speculative. In support of that submission she quoted the authority of Allied Maples Group Ltd v Simmons & Simmons [1995] 4 All ER 907. Ms Laing says that if one looks at the findings made by the Industrial Tribunal in paragraph 7 of their first decision in November 1996 and paragraph 3 of their second decision in February 1997 it is clear that the Industrial Tribunal found that he would not have been appointed had he gone through with the interview.

So far as the second issue is concerned, the amount of compensation awarded to Mr Khan of £1,000, Ms Laing says that what was awarded for an injured feeling is a matter for the Industrial Tribunal's discretion and that s.57(4) makes it plain that that is so. In the circumstances she says that it is not for us to disturb that finding. The £1,000 compensation was appropriate, as was found by the Industrial Tribunal.

Our decision is that, on the first point, we accept Mr Kibling's submission. It is our view that the Industrial Tribunal should have assessed the lost chance of Mr Khan being appointed. We should say that when he appeared before the Industrial Tribunal, Mr Khan was unrepresented and it is fair to say that his claim under this particular heading was not advanced in the way that it should have been. He led evidence to the effect that he was the best candidate and would have been appointed and on that basis he claimed his loss of wages. As Mr Kibling in his careful argument pointed out, the Industrial Tribunal erred in attempting to decide what would have happened if an interview had taken place. It is our view that the Industrial Tribunal were misled, totally innocently, of course, by the way in which Mr Khan advanced that particular part of his claim.

The Industrial Tribunal must first make a finding as to which candidate it was who was appointed and thereafter ascertain what his qualifications were and make a comparison between those and Mr Khan's qualifications. The Tribunal must then make an assessment of the chances they thought he, Mr Khan, would have had of beating his rival, on the basis, of course, that all racial elements were totally discounted. The case must be remitted to the same tribunal to enable them to make that assessment.

So far as the second part of the appeal is concerned, namely that against the £1,000 which was awarded for injured feelings, it is our view that it is arguable that this award is too low, having regard to the case of Sharifi. We are very mindful that it is difficult always to make comparisons between one case and another but, having regard to what happened in that case in circumstances which we think were less favourable to the Applicant than the position of Mr Khan, we think, as I say, that it is maybe too low. We take the view that, when this case is remitted to the Industrial Tribunal, it should have the opportunity of reconsidering this award for injured feeling and do so in the context of the new evidence which doubtless will be led before it in relation to the assessment of the lost chance of appointment. We think it would be wrong to tie the Tribunal below to the figure of £1,000 or any other figure we might think it appropriate to substitute. There is a further point. When the Industrial Tribunal makes a finding in relation to the claim for compensation for injured feelings and makes its assessment for the lost opportunity of securing his appointment it has to add together the figures it provisionally would award under each heading and then stand back to see whether perhaps there is any element of overlapping in the overall composite figure, and, if there is, adjust it accordingly. For both these reasons, we think that it would be wrong were we to bind the Industrial Tribunal to its previous finding of £1,000 compensation for injured feeling.

Accordingly, our order is that this case be remitted to the same tribunal for its reconsideration on both counts.