United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR K CADOO (Representative) Employment Law Consultant Chestnut Cottage Boughton Malherbe Maidstone Kent ME17 2BD


 


JUDGE JOHN ALTMAN: This is an appeal from a decision of the Employment Tribunal sitting at London South on 9 December 1998. It was a decision which assessed compensation at £9,609.40 for the Respondent, including interest, for discrimination on the ground of race. It comes before us by way of preliminary hearing to determine whether there is a point of law arguable in full before the Employment Appeal Tribunal.

1. Mr Cadoo who has represented the Appellant on this hearing, submits in accordance with the Notice of Appeal that there are two issues of law to be taken upon that decision. The first is that the Employment Tribunal by some remarks made in an earlier decision did two things; first of all, they demonstrated a prejudice in advance of hearing evidence as to the level of an award and secondly, by so doing, justice was not seen to be done.
2. The original decision of the Employment Tribunal followed a hearing on 22 and 23 October 1998. In that decision the way in which the Appellants had approached a post was found to have been unlawfully discriminatory on the ground of race because of the inferences to be drawn from the treatment received by the Respondent in the absence of any other explanation. At the conclusion of that hearing it appears that the parties agreed that the Tribunal should adjourn the issue of remedy and the date was fixed. They said this:

"At that time we will consider the appropriate damages to award for the complaint of discrimination which we have found to be well founded. The Respondents should understand that the damages for injury to feelings are likely to be substantial in view of the stress and distress caused to Mrs Caesar by the way she was treated ."

3. At the adjourned hearing there was evidence before the Tribunal of two reports from a psychologist, Mr Flatman, and of the Respondent's medical practitioner Dr Chada. It appears from the face of the reports that the Tribunal may already have had at the main hearing in October 1998, the first report of the chartered psychologist, certainly it was dated before that date. Certainly it appears, that the Tribunal had either from that report or from other evidence, cause to come to the view in the original decision that there had been stress and distress caused by the way the Respondent was treated and to which they referred. The comment to that effect in the decision is one with which, in itself, Mr Cadoo does not take issue.
4. What Mr Cadoo says is that it appeared from the passage I have quoted that regardless of the submissions that might subsequently be made, the Tribunal had made its mind up in advance of the remedy hearing. He would have preferred that the Tribunal said nothing about the amount of compensation until the remedy hearing. He said that such statements were bound to raise the expectations of the Respondent above reasonable levels so as to preclude the possibility of meaningful negotiation. Furthermore, he says even if the Tribunal has not made its mind up, nonetheless to give out that sort of signal at that stage is for justice not to be seen to be done and to leave a sense of grievance on the part of the Appellant that their attendance at the subsequent hearing would be futile because it would have no impact, the Tribunal already having made its mind up. We can see not only no point of law, but no substance in that argument whatsoever.
5. The Local Authority with large resources at its disposal are in a position to assess levels of compensation but it appears to have been felt by the Tribunal that they needed to be made aware of the fact that at that stage the Tribunal from what they had heard regarded the issues as substantial. The Respondent may or may not have had detailed advice upon appropriate award levels, but simply because a Tribunal uses the word "substantial" does not, it seems to us, give any reason to suppose that the Respondent would expect an unreasonable amount of money. After all, substantial awards for injuries to feelings are made which are reasonable, and we fail to see why the use of the word substantial can be said to be anything other than an indication.
6. The processes of Employment Tribunals are designed to be informal and parties appearing before them are entitled to expect assistance from Tribunals. One of the features of that assistance is that from time to time it is often helpful for parties to know what is in the mind, at a particular point in time, of the Tribunal. If a Tribunal Chairman and members had to sit po-faced, not uttering a word from the beginning to the end of an application, for fear of appearing to be giving an indication, hearings would be five times as long because parties would not know what to argue about and what not to argue about. Parties would not really know in which direction to argue their cases. But from time to time for the assistance of the parties, a Tribunal will indicate to the parties the way their minds are working, without it being indicated or understood that their minds are made up or that they have any concluded view about it. It seems quite clear to us from the words used by the Tribunal that that is all that was happening here.
7. The Tribunal used the word "likely". They pointed to the matters about which they at that stage had knowledge. There is in our judgment no material within that sentence to indicate that it is arguable that the Tribunal had made its mind up, nor can we see any fair reading of that sentence giving rise to the allegation that justice was not being seen to be done or that there could not be a substantial and fully argued hearing about remedy which would be adjudicated upon on its merits. We find no point of law whatsoever on that ground. Indeed we would only observe that that sort of indication is surely of assistance to the parties when trying to resolve differences in amounts of compensation. Perhaps without that sort of indication, one party may come to a view as to an inappropriate level of compensation which does not do that party justice so that the end result may be an injustice.
8. The second point of law is that the amount of compensation is said to be so high as to be out of range with comparable awards of compensation. The issue of comparable awards of compensation in cases of discrimination is not an easy one in itself. Whether there should be compared awards is in itself possibly a matter of argument. The Tribunal has to assess the facts of each case and look at the actual injury to feelings in that case and grant an award. Mr Cadoo has pointed out that this was not a case of harassment or humiliation, he would say, or ostracisation, although an argument about whether that is correct would descend to an issue as to what one means by those words. Mr Cadoo points out that following the non-appointment which was at the heart of the discrimination, the Local Authority apologised, conducted a grievance procedure and corrected the injustice so far as they could.
9. All those things may be true, but the Tribunal came to the conclusion that damage had been done which should be compensated for. The Tribunal would have erred in law if they had taken those factors into account in reducing the amount to award which would otherwise have been awarded as a fair measure of the injury to feelings that had been caused. That is what they have to assess, so long as they find it is genuine and not exaggerated. It seems to us, that is exactly what they did. In their decision the Employment Tribunal said this about compensation:

"We find this is a case in which the Applicant has suffered discrimination on the grounds of race which has caused a substantial suffering anxiety and depression, spread over a long period of many months. It is not a case in which there has simply been inconvenience: the injury to feelings in this case is directly related to medical consequences. We therefore find that the appropriate figure for damages for injury to feelings is £9,000."

10. There was also a claim for loss of earnings, but the Employment Tribunal found that that should not be awarded and they declined to make such an order. The Employment Tribunal had before them the reports from medical and psychological practitioners to which I have referred and they made the assessment which they did. They had the opportunity to see the Respondent to assess her evidence, to consider its genuineness and they characterise this as clearly not the ordinary case in which it was simply a matter of giving an award for injury to feelings. There were consequences in relation to stress and allied conditions that had also to be reflected in the award. We cannot see any point of law arising upon the amount that was adjudicated upon. It has been asserted by Mr Cadoo that this is out of range, but we have had no suggested range put before us and we know of no range. Such understanding as we do have of the awards that are given by Employment Tribunals indicate to us that this is probably not out of range, but that is just an observation by the bye. This case should not be regarded as a guideline case of any kind – it was simply a case on its facts – and we are not in any way endorsing the amount awarded as an appropriate sum as a guideline. However, we can see no point of law upon which it can be argued there was any error.
11. Finally Mr Cadoo has suggested that it was not fair to consider the medial reports, because he pointed out at the time that he was not able to cross examine the witnesses upon it. He has argued before us that he asked that the statements be disallowed but we could not help noting that this was mentioned in neither the Notice of Appeal nor the Skeleton Argument. Furthermore there is no evidence on the face of the decision that any application to adjourn for the Respondents to obtain their own occupational medical opinion or anything of that kind or even to counter the evidence was made, and so it seems to us no point arises upon that.
12. Criticism was made by Mr Cadoo of the reports of the psychologist saying that they were highly coloured. On the face of it they appear to have been coloured as to their references to the cause of the disability, but Mr Cadoo says that prejudices the whole of the psychologist's conclusion. But the Employment Tribunal were clearly alive to that because they pointed to its argumentative nature and they had other evidence to take into account. We can see no point of law arising on the second area of the submissions of Mr Cadoo. This appeal is therefore dismissed at this stage.