United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J WHITMORE (of Counsel) The Legal Protection Group Ltd Marshalls Courts Marshalls Road Sutton Surrey SM1 4DU
For the Respondent	MR E GRANT (Representative) Northern Complaint Air Fund Checkpoint 45 Westgate Bradford West Yorkshire BD1 2TH


 


JUDGE D M LEVY QC: This is an appeal against a Remedy Hearing. The parties involved are the Racial Equality Council and Others as Appellants and Mr P. Widlinski as Respondent.

The appeal arises out of a complaint made by the Respondent on 19 June 1996. He had been employed with the Appellants from 14 November 1994. His employment ended on 30 April 1996. He made a complaint that he had been the subject of race discrimination and sex discrimination in his Originating Application. The Notice of Appearance by the Appellants was dated 9 July 1996 and they denied that there had been any such treatment.

There was hearing which took three days before an Industrial Tribunal sitting in Middlesbrough on 9, 10 and 11 October 1996. We understand that at the end of the third day it was indicated that the claims under the Sex Discrimination Act would not succeed, but that the claim on Race Relations grounds would succeed on one of the four matters which had been advanced by the Respondent.

The Remedy Hearing then took place on 5 February 1997 and Extended Reasons recording the Decision on this hearing were promulgated on 8 April 1997. The Respondent was awarded damages under three heads:

(1) For loss of wages etc. An appeal is made against the sum awarded because a pension contribution for three years was awarded, a period considerably longer than the award for loss of wages.

(2) An award for aggravated damages of £5,000 together with interest and

(3) An award for injury to feelings for £10,000 with interest.

An appeal from that decision was launched on 2 May 1997. On the preliminary hearing on 10 October 1997, the Tribunal ordered that the matter be allowed to proceed to a full hearing which has taken place before us today. The Respondent applied out of time to be allowed to be heard at the hearing, an application we granted this morning.

The appeal is made against the three holdings of the Industrial Tribunal. On the first because of quantum of the pension contribution; on the second because of the quantum for insulting behaviour and on the third of the award both on principle and on quantum.

The chronology which led to the Respondent's application to the Industrial Tribunal is as follows. In 1990 the Respondent started work with the Appellant. On 14 November 1994 he commenced employment as a Racial Equality Officer. On 24 March 1996 he was interviewed and was told that he had been given a new job which would effectively have been a promotion.

On 1 April 1996, the date of the first complaint of discrimination alleged, he was told that an error had been made on 24 March. He had not got the new job. He was the second most successful candidate. Later, on 19 April 1996, he was told there had been a clerical error on 24 March.

On 30 May 1996 he went to see his doctor. He was prescribed medicine because of "reactive type depression". On the medical evidence before the Tribunal this was claimed to be a result of the stress he had suffered from the change of position of the Appellants relating to his "new" job.

On 11 June 1996 there were second interviews of candidates for the post by the Respondent to which had thought he had been appointed in March 1996. He was unsuccessful.

The Tribunal found that the first three errors, those of 24 March 1996, 1 April 1996 and 19 April 1996 were not discriminatory errors, but bungling errors by the Respondent. They held however, that the way in which the Appellant conducted interviews on 11 June 1996 amounted to racial discrimination. Paragraphs 11, 12 and 13 of the Extended Reasons read:

"11 Dealing with the withdrawal of the original job offer we accept the respondents' explanation that the original marking system was bungled leading to the offer being made in error. Clearly the whole selection procedure was badly handled and the respondents concede the explanations given to the applicant for their change of mind were untrue. Dealing next with the respondents' failure to extend the applicant's initial appointment with the funding offered by the CRE we accept Mr Jagra's evidence, based on the accounts, that the CRE offer covered only the applicant's basic salary and that the Council did not have sufficient funds to cover his expenses. However we cannot accept the respondents' proposal that to have done so would have been unfair to other candidates. This argument is illogical since exactly the same situation applied when the applicant made his first application in March.

12 Finally as to the respondents' failure to appoint the applicant in June following the second interviews we note that in June the interview procedure was substantially changed. In March the format was in three parts: a case study/written test (set up and marked by Mr Holland of the CRE), a presentation by the candidate and a question and answer session. The first change [emphasis added] was the removal of the case study. To this the Tribunal take no exception, apparently it has caused problems elsewhere and its marking was the rock on which the first selection foundered. However the second change [emphasis added] was to retain very similar questions for the question and answer session but delete the one which expressly asked about experience of Industrial Tribunal procedures. The respondent says that the June interview gave the candidates ample opportunity to deal with the Industrial Tribunal aspect of the job. The Tribunal does not accept this explanation since:

(a) a comparison of the two sets of questions does not support such a proposition

(b) the Job Description (A41/2) comprises amongst 'main duties' a substantial number which require a capability to process racial discrimination complaints through Industrial Tribunals. In this respect the applicant had considerable experience in the preceding 17 months whereas the successful candidate had none.

13 Our final conclusion is that the Council has not successfully shown that the reasons which they have put forward as to why the applicant was treated less favourably are in all cases adequate or satisfactory. We therefore find that the applicant has been discriminated against on racial but not sexual grounds."

At the remedies hearing the Respondent gave evidence to the Tribunal dealing with his medical conditions. Paragraph 2 of the Extended Reasons, reads:

"The applicant also gave evidence as to his initial elation when he was first informed that his application for the new post with the Council was successful and that he was completely stunned to be told shortly thereafter that he had not got the job. He said that the injury to his feelings was the worse compounded when he was successively given three different and conflicting reasons for the decision to revoke the initial offer of the post: namely, first that there had been a clerical error, second that the Committee was unable to make a decision and, finally, that the Council was acting on legal advice. He regarded this as very high handed treatment and the Council's subsequent behaviour as insulting and oppressive."

Paragraph 6 reads:

"6 The Tribunal consider that this is a case where aggravated damages should be allowed on the grounds of insulting behaviour by the respondent. In all the circumstances including the recurrence of asthma and the medical evidence we are satisfied that a figure of £10,000 for injury to feelings is not unreasonable."

Mr Whitmore, who appeared for the Appellants, addressed us first on the £10,000 award for injury to feelings. He referred us to the decision of Prison Service v Johnson [1997] ICR 275, a decision of this Tribunal by a panel headed by Mrs Justice Smith. He pointed to the quantum of the award in that case: £20,000 was awarded for injury to feelings to a prison officer of Caribbean ethnic origin, who had been subject to a great deal of racial discrimination in his employment; £7,500 was awarded for aggravated damages against the Prison Service and £500 was awarded for injury to feelings against two officers.

He referred us to the North West Thames Regional Health Authorities v Noone [1988] ICR 813, cited within Johnson judgment. In particular, our attention was drawn to a suggestion in Noone that an award of £3,000 for injury to feelings might be the norm. Insofar as the Noone decision suggests such a norm, the decision was made ten years ago and at a time when there was a limit to the statutory jurisdiction of the Industrial Tribunal.

We have carefully considered all the submissions made by Mr Whitmore on the quantum of £10,000 for injury to feelings in the context of the principle to be applied in making such awards as set out in Johnson at pp 283 B - D. We are satisfied that the quantum was one which may be slightly on the high side, but it is a sum at which an Industrial Tribunal, properly directing itself, could well have arrived. In these circumstances it is not open to us to interfere with it. That aspect of the appeal therefore fails.

Mr Whitmore then addressed on the pension payment which he submitted was wrong. In our judgment the sum awarded under this head is one on which on the facts as found the Tribunal could properly have reached. The Respondent went from pensionable to non-pensionable employment. Also he went to a lower paid salary. There was no inconsistency in the award because of the fact that the Industrial Tribunal only gave him a scaled-down period of one year's for loss of wages, viewing as they did wages and pension contributions separately.

On the award of aggravated damages, we were grateful to the assistance given to us in Johnson between pp 285 C and 287 F, where the Tribunal concluded that aggravated damages were available for award in discrimination cases. In principle, therefore, it was open to the Industrial Tribunal to make such an award to the Respondent.

Especially considering the aspects of discrimination found proved as set out in paragraph 12 of the Extended Reasons, in our judgment there was sufficient for the Industrial Tribunal, properly directing itself, to come to the conclusion that the Respondent was entitled to aggravated damages.

It may be that other tribunals would not have considered that an award of aggravated damages was justified here; but we think that many tribunals on the facts as found would have come to the decision reached below. In these circumstances we cannot say that it was a wrong application of the principle to award Mr Widlinski such damages. We have considered whether the quantum was out of scale bearing in mind the remark made by Mr Justice Wolf, as he then was, in W v Meah [1986] 1 All E.R. 935. We do not however consider that the sum awarded can thus be considered.

In the circumstances, in our judgment the appeal fails on all three grounds. We would thank Mr Whitmore and Mr Grant for the assistance which they have given us during the hearing. We dismiss the appeal.