United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS K MONAGHAN (of Counsel) Linskills 195 Kensington Liverpool L7 2RF


 


JUDGE J. ALTMAN: This is an appeal from the decision of the Industrial Tribunal sitting at Liverpool on 3 July 1998. The appeal relates to the decision of the Tribunal in which having found that the Respondents had discriminated against the Applicant on the grounds of race, they assessed and awarded compensation in respect of injury to feelings in the sum of £3,150 inclusive of interest.

There are three grounds of appeal which are sought. The first relates to the proposition that the award was so low when compared with other awards under this head in the Tribunals, as confirmed by the Employment Appeal Tribunal, that the disparity between them constituted an error of law on the part of the Tribunal, in awarding a sum so low that no Tribunal properly directing itself could have awarded. In relation to that ground, we consider that this matter should proceed to a full Employment Appeal Tribunal hearing without necessarily coming to a view as to whether an error of law is disclosed by the particular disparity in this case, in the knowledge that this point of law should be argued so that it is desirable for this particular case to be considered by a full Employment Appeal Tribunal. This is because of the need to intervene where appropriate and where it is necessary as a matter of law to ensure the general consistency throughout the country in awards of this kind.

The second ground of appeal is the failure of the Tribunal to consider and make an award in respect of aggravated damages. The Applicant was represented before the Tribunal, the Respondents did not appear. The Originating Application contained a detailed professionally prepared application and the claim for aggravated damages was not included. However, we have been told that such a claim was made orally at the hearing. We give leave because if that is so, there is an arguable point of law that the Tribunal failed to address an important head of compensation. We give leave for the matter to proceed to a full Employment Appeal Tribunal on the failure of the Industrial Tribunal to address the claim for aggravated compensation. But we qualify that leave because it is desirable that that should only proceed if the notes which we order at the end of this judgment confirm the proposition that it was raised before the Industrial Tribunal. We make that ruling without disrespect to the Applicant's solicitors who say they made the application at the hearing, but only to give an opportunity to the Respondents who are not, of course, represented here today and were not represented before the Tribunal to contradict that proposition if they deem fit.

The third ground of appeal which is proposed in amended grounds of appeal, is that no award was made in respect of personal injury. The Applicant did sustain personal injury in the course of employment with his back, which is, as we understand, the subject of independent litigation, but it was alleged and indeed referred to by the Tribunal that he sustained depression and there was a medical report, we are told, handed in to the Tribunal. However, it is conceded that there was no claim before the Industrial Tribunal for compensation under this head and in those circumstances, we have decided to not give leave for the appeal to be amended to include that ground if such leave is required, but in any event, we find that there is no properly arguable point of law in that this point was not taken before the Industrial Tribunal. Accordingly we dismiss the application to amend, or if we are wrong about that, we dismiss that ground of appeal at this stage.

We are told that it is anticipated that the notes of the evidence and the submissions made by the Chairman will be fairly brief, because of the length of the hearing. In those circumstances, it seems to us, it would be appropriate in this particular case when an overview of the assessment of compensation has to be made for us to require the Chairman to provide his notes of the submissions made and the evidence made before him. We recognise that this is a substantial burden very often, but it seems to us that if the Employment Tribunal is to review the assessment of compensation, they can only do that by knowing the details of the descriptions that were given in evidence to the Tribunal.

This case proceeded by way of written witness statements being treated as evidence in chief. It seems to us that the only way the Employment Appeal Tribunal can have the full evidence is to have copies of those witness statements which were handed in to the Tribunal and we ask the Tribunal to forward to the Employment Appeal Tribunal the statements of witnesses that were before them. We consider that this appeal should be listed to last for a day, because of the consistency point, in category B.