United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R ALLEN (of Counsel) Instructed By: Mr J Phipps Oxfordshire Employment Rights Barton Neighbourhood Centre Underhill Circus Oxford OX3 9LS
For the Respondents	MR T LINDON (of Counsel) Instructed By: Mr N Robertson Messrs Rowe & Maw Solicitors 20 Blackfriars Lane London EC4Y 6HD


 


MR JUSTICE LINDSAY (PRESIDENT):

1. This appeal, supported by the Commission of Racial Equality, concerns the quantification of damages for injury to the complainant's feelings. Too little was awarded, says Mr Gbaja-Biamila, who appears by Mr Allen Q.C.
2. On the 6th January 1997 Mr Gbaja-Biamila lodged an IT1 claiming race discrimination. He complained of an event that had taken place on the 18th October 1996. The respondents he named were DHL International (UK) Ltd, his employer, and 2 fellow employees of his, Paul Streak and Chris Honour. On the 3rd June 1997 he lodged a second IT1 complaining of "direct/indirect race discrimination" against the same respondents plus a fourth, Mr J. Lyons, in respect of an event on the 7th March 1997. Both complaints were heard together at Reading at a hearing spread over 4 days between September 1997 and January 1998. In the event the Tribunal ranged over events beyond of those of the two specified days. On the 17th February 1998 the Extended Reasons of the "liability" Tribunal, under the chairmanship of Mr J.R. Hardwick, were sent to the parties. Mr Gbaja-Biamila succeeded in that it was held that he had been unlawfully discriminated against contrary to the Race Relations Act 1976 by the company, by Mr Streak and Mr Honour. His complaint against Mr Lyons was dismissed. There is no appeal as to liability. The parties were invited to agree "remedy" by the Tribunal and arrangements were agreed as to compensation for loss of earnings but that left compensation for injury to feelings unresolved. A "remedies" hearing was therefore arranged.
3. That second hearing took place before the same Tribunal over 2 days in July 1998. The unanimous decision was sent to the parties on the 19th August 1998. The Company was ordered to pay Mr Gbaja-Biamila £3,750 as compensation for unlawful discrimination. £2,750 of the total was said to be damages for injury to feelings and £1,000 for the effects on the Applicant's health. Provision was made for interest to be paid (some £518) but no sum was required to be paid by either Mr Streak or Mr Honour. Mr Gbaja-Biamila lodged a Notice of Appeal which was then amended at the Preliminary Hearing before the EAT. On his side the Commission for Racial Equality became interested and, as we mentioned, the Appellant is now represented before us by Mr Allen Q.C.. The Company is represented by Mr Linden. Neither had appeared below. Before we turn to the grounds of appeal we need to say something of the background and go back, first, to the 5 days of the "Liability" hearing.
4. The Appellant was born and brought up in Nigeria. He is of Nigerian nationality. Although his first language is Yoruba he was educated, in Nigeria, in English, a language with which the Tribunal described him as being "fully conversant". He held, at the time of the hearing, 5 "O Levels" and 3 "A Levels" and a Diploma in Higher Education in Law from Thames Valley University. He had by then passed his second-year exams in a four year degree course in law at Wolverhampton University. Mr Allen describes the Appellant's ambition as to be a Lawyer. The Tribunal held the Appellant to have a good command of the English language. Indeed that seems not to have been at all disputed so far as concerned written English; what was in issue, as will appear, was the speed, accent and comprehensibility of his oral English.
5. The Appellant began part-time work with the company in July 1995 as an Operations Clerk. He worked only two hours a day, in the evening. At the end of his probationary stint there was a move to refuse him a long-term job but the Respondent Mr Streak decided to extend the probationary period and at the end of the extended period the Appellant was taken on. His job was a "backroom job". In June 1996 he applied to be a Field Sales Executive; he was interviewed but was told he did not have sufficient experience. He did not claim that to be unfair. On the 10th July 1996 he applied for a Trainee Management position. Whilst he awaited the results of that application he applied on the 30th July for a Customer Support position. This job involved meeting and advising customers. He was interviewed by the Respondent Mr Honour and one other. He did not get the job. The Tribunal held:-

"According to Mr Honour the Applicant did not get the job because he did not consider he had sufficient verbal communications".

6. On the 31st July 1996 or thereabouts the Appellant applied for another Customer Support position. His application was not acknowledged and a chasing up letter to Mr Honour got no reply. However, the Employment Tribunal detected nothing untoward in Mr Honour's conclusion on this application; the job was very communications-orientated and because of that the Appellant was not suitable.
7. In early August 1996 the Appellant was told that his application to join the Trainee Management scheme had been unsuccessful. There were, he was told, other suitable candidates and tough competition for entry.
8. On the 20th September 1996 the Appellant applied for 3 courier vacancies. It was at this point only that the Tribunal held that there had begun to be a valid area for the Appellant's complaints. Mr Streak interviewed him. There were 20 candidates. The Appellant did not get any of these jobs, which went to one internal and two external candidates. The Tribunal held Mr Streak had excluded the Appellant from consideration for these jobs. The floater courier job went to an external candidate and the terms used by the Tribunal suggest that the other courier job also went to an external candidate.
9. The internal candidate's promotion created a vacancy for a full-time Operations Clerk. The Tribunal does not expressly find the Appellant to have applied for the job but that he did so is implicit in its findings. The Appellant was not appointed to the full-time Operations Clerk job. In mid-October Mr Streak told the Appellant he had been unsuccessful; hence the date of the first event complained of in the first IT1, the 18th October 1996. Although the Tribunal made a finding as to why Mr Streak decided not to offer this job to the Appellant there is no clear finding that the latter was told the reason at this stage. Mr Streak's evidence as to his reason is described by the Tribunal as follows:-

"Mr Streak said that the Applicant was not given the position because there were better candidates and the main reason for his view was that the Applicant's verbal communication skills were not good enough for the post. He considered that the Applicant had a strong native Nigerian accent exacerbated by his tendency to speak very fast. The courier job was the Respondent's front-line with the public and its clients and good communication skills were very important. The full-time Operational Clerk role involved dealing with customers who turned up at reception to either collect or deliver documents and also the couriers who telephoned in with queries".

Mr Streaks' main reason for not offering the Appellant any courier post and that of the full-time Operations Clerk was that his verbal communication skills were not good enough but the Tribunal held that Mr Streak (by a large margin) and Mr Honour (by a smaller one) had exaggerated the proportion of a courier's job spent liaising with customers. Whilst the Tribunal's language is ambiguous in the sense that it is not clear whether what is being described is Mr Streak's evidence to the Tribunal or what Mr Streak had said at the time to the Appellant, the more probable construction, and the one which we shall adopt, is that the passage we have cited describes what the Appellant was told at the time. The Tribunal also held that the Appellant had been rejected for the full-time Operations Clerk job even before an application from the candidate who got the job had been considered.

10. On the 21st October the Appellant instituted the first stage of a Grievance to Mr Honour which complained that the provision in the Employer's Handbook, which stated that priority would be given to existing employees where vacancies occurred, had not been followed by Mr Streak. The fact that the Appellant's Grievance is not described as including a complaint about Mr Streak's reasons for not offering the job to the Appellant tends to support a view that, as yet, the Appellant had not been told of those reasons but, as we have indicated, we shall proceed on the basis that the Appellant had already been told of the alleged shortcomings in his oral English and comprehensibility.
11. On the 30th October the Appellant met Mr Honour and another. Mr Honour felt he should uphold Mr Streak's decision because he considered there were deficiencies in the Applicant's verbal communication skills. The Tribunal held this first Grievance stage to be a farce; Mr Honour was going to uphold Mr Streak's conclusion come what may. The Tribunal regarded this as a continuation of discriminatory treatment. The Appellant was told of the decision (to uphold Mr Streak's decision) at the close of the meeting and was told also that if he was not satisfied he could pursue the matter with a superior, Mr Lyons (the 4th Respondent). There is still no holding that the Appellant was told of any alleged shortcomings in the Appellant's oral English although Mr Honour considered that there were deficiencies in that area.
12. There was then a meeting between Mr Streak and the Appellant which was the subject of a sharp conflict of evidence. The Appellant's evidence included that at this meeting Mr Streak told him that "Off the record" he was satisfied the Appellant could do the job but that due to his accent customers would find it difficult to understand him.
13. On the 4th November 1996 Mr Honour wrote to the Appellant confirming the decision to uphold Mr Streak's decision not to offer the job to the Appellant. The next day the Appellant wrote to Mr Lyons to initiate the second stage of the staff Grievance procedure.
14. On the 20th November a Grievance meeting took place. Mr Lyons had previously discussed the background with Mr Honour and Mr Streak who informed him that the reason why the Appellant had been turned down was because of his verbal communication skills. At the meeting Mr Lyons felt that the problem was the speed of the Applicant's speech; he thought the decision not to give the Appellant the job was valid. He felt that a full-time Operations Clerk needed more communication skills than a part-time clerk who dealt with in the main with "backroom duties". After the meeting, and before its result was announced Mr Lyons thought it prudent to discuss the matter with the Company's Personnel Department.
15. On the 18th December the Appellant applied to Mr Streak for the position of a floater courier in Oxford and on the 20th January 1997 he applied for a courier job in the Banbury area.
16. At some point Mr Lyons heard of the IT1 having been lodged by the Appellant on the 6th January 1997. He decided not to finalise the Grievance procedure until a Defence had been put in by the Company.
17. On the 10th February 1997 the Company (by Mr Lyons) offered the Appellant £750 to assist him in improving his English. It was offered, the Tribunal held, on a without prejudice basis at a meeting and "So that he could progress with the Respondents' organisation" and in settlement of both his IT1 and his Grievance. It is improbable that the Company would now have offered to assist the Appellant to improve his English if the subject of the Company's view that there were shortcomings in his English had not previously been aired with him. That is a factor in our decision to treat the Appellant as having had the Company's view of his English made known to him from mid-October 1996. The Appellant, who had been accompanied to the "without prejudice" meeting by his solicitor, did not revert to Mr Lyons on the offer made to him.
18. On the 13th February the Appellant asked Mr Streak what the position was as to the Oxford and Banbury courier jobs and on the 18th February Mr Streak answered that the jobs were only proposed jobs and needed to be "signed off", that is to say agreed for expenditure by superiors in the company. Failing that, he said, he would be in a position to interview all internal candidates for the job. In fact, four days earlier an appointment had been made to one of the jobs. Whilst, again, the Tribunal's decision is not entirely clear, the more probable reading is that it held Mr Streak to have lied when he said on 18th February that the jobs needed "signing off".
19. On the 7th March the Appellant met Mr Honour and Mr Streak and was told (as the Tribunal held) that "because of the communication difficulties" he had been turned down for "the courier position".
20. On the 10th March Mr Lyons gave the Appellant his written conclusion to the Grievance; he supported the decisions earlier made by Mr Streak and Mr Honour.
21. On the 30th June 1997 the Appellant lodged his IT1 complaining of racial discrimination in connection with his application for the Oxford and Banbury courier positions.
22. The Tribunal, impressed by the clarity with which the Appellant had spoken to it in September 1997, held:-

"..... having had the opportunity of hearing the Applicant, we pay scant regard to the Respondent's assertions of his communication faults".

Somewhat illogically (as the Appellant was not offered the jobs which would have taken him out of mainly backroom duties) the Tribunal noted that as far as it was aware no customer had taken issue on the Appellant's communication and it concluded:-

"On all the evidence before us we perceived an underlying bias against the Applicant by Mr Streak and by Mr Honour. We find the case of race discrimination on grounds of race and national origin made out".

So far as concerns Mr Honour and Mr Streak the Employment Tribunal held:-

"The management involved have also been cited and we find the second and third Respondents were also liable for discrimination against this Applicant under the provisions of section 33 Race Relations Act 1976".

Mr Lyons, though, was held to have endeavoured genuinely, although not thoroughly enough, to have addressed the issues; he had not discriminated against the Appellant contrary to the Act.

23. So much for the "Liability" hearing. At the "Remedies" hearing in July 1998 the Appellant's evidence was recorded by the Tribunal in their paragraph 4 as follows:-

"4. The Applicant gave evidence that the discrimination had had a marked effect on him. He has found other staff wary of associating with him. It was only after the Tribunal's decision that any question of any apology came about. He considered that there were a number of individuals who had not forgiven him for taking a race discrimination complaint to an Employment Tribunal. He had become more self conscious at work and more reluctant to take part in social activities. His sleep had been affected and he was quieter at home which had effected his relationship with his wife. He is suffering from headaches and pains in his neck and chest and his doctor has prescribed Diazepam. The Applicant used to play football on Sundays and go weight training, but ceased doing this. The Tribunal were referred to a report on the Applicant by Mr Paul Gordon, a psychotherapist. His view was that the Applicant was experiencing a significant degree of depression occasioned by the discrimination".

It is not clear how much of that evidence was accepted; the Tribunal later held:-

"We were not impressed with the written evidence of Mr Gordon, the psychotherapist. It seems to us to be a summation of matters told to him by the Applicant and to an extent we consider it to be self serving. The report makes the comment regarding depression, but we agree with Mr Robertson [the Company's advocate at that hearing] that there is no indication that this is an opinion of clinical appraisal. That is not to say that we discount what the Applicant has told us of the depressing effect of his previous failure to progress in the Respondent's organisation because of discrimination. We note in particular the cessation of his sporting activities in relation to football and weight lifting".

24. So far as concerns the Company's behaviour, evidence was given by a Mrs Townsend, the Company's Station Manager at its Oxford branch where the Appellant was employed. She said that the Company had taken immediate steps to address the finding of the "Liability" hearing. Mr Allen accepts that to have been the case. The Appellant took a full-time courier job with effect from March 1998. There was, it seems, an on-going training programme following the Tribunal's liability decision. The Tribunal was clear that Mrs Townsend would not tolerate any form of victimisation at her station and that she was endeavouring to resolve the Appellant's concerns through the Grievance process. There had been 10 meetings between her and him to that end. Mr Honour and Mr Streak had written letters of apology to the Appellant. Mr Allen accepts that there was no question of on-going victimisation.
25. As for what had caused the racial discrimination, the Tribunal held:-

"The Respondent's actions were more born out of incompetence and lack of training in matters of equal opportunities as opposed to malicious intent".

So far as concerned the individual Respondents the Tribunal held that:-

"...... crucially these managers had had no training in how to handle such matters".

On the other hand, the Company:-

"..... by its wholly unstructured cavalier approach to matters of equal opportunities was the predominant factor in the treatment of the Applicant".

Against that background the Tribunal concluded in its paragraph 14:-

"Having considered the matter most carefully we conclude that there should be an award of £2,750 as damages for injury to feeling and £1,000 for the effect on the Applicant's health".

In their paragraph 19 they say:-

"In conclusion there should be an award of £3,750 as compensation for injury to the Applicant's feelings".

As we mentioned earlier, compensation for loss of earnings and related benefits were to be settled between the parties without needing the assistance of the Tribunal.

26. At the "Remedies" hearing Counsel then appearing for the Appellant had pressed for awards of £1,500 against each of the two remaining individual Respondents and £12,000 against the Company, together with (against the Company) £4,000 for the Appellant's depression and associated symptoms and £7,000 for aggravated damages, thus making in all, were they to be awarded, an award of £26,000 quite apart from whatever sum the parties might agree as to loss of earnings.
27. The Tribunal directed itself as to quantification of damages by reference to Prison Service and others -v- Johnson [1997] ICR 275, North West Thames Regional Health Authority -v- Noone [1988] ICR 813 and Alexander -v- The Home Office [1988] ICR 685. It is not said that the directions which the Tribunal thus gave itself were either misunderstandings or incomplete understandings of those leading cases. Mr Allen, though, mounts an appeal which is divisible into three topics; firstly, aggravated damages; secondly, liability of the individual respondents and, lastly and more broadly, criticism of the figures awarded here in the light of the proper approach to quantification of damages in respect of injury to feelings. We shall deal with those three heads in that order.

A. Aggravated Damages

28. The only relevant ability of an Employment Tribunal to order the payment of money in respect of racial discrimination is that conferred by section 56 (1) (b) of the 1976 Act which entitles the Tribunal to order payment by the respondent of "compensation of an amount corresponding to any damages he could have been ordered by a County Court .... to pay to the complainant if the complaint had fallen to be dealt with under section 57". Subsection (4) of section 57 provides as follows:-

"(4) For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head".

In many areas of the law injury to feelings is not within the range of compensatable loss; in such a context there can be a particular need for thought to be given to aggravated damages. However, so far as concerns racial discrimination, as we have seen, injury to feelings is expressly and fully compensatable. If injury to feelings has been caused by the unlawful discrimination then it matters not whether the events successfully complained of were done without any improper or evil motive or even if they were done with the best of intentions and in some inoffensive manner; if, nonetheless, there was injury then, nonetheless, there can be compensation. Equally, it might be thought, if the events complained of had been done with the most evil of motives and in the most offensive of manners, so far as they have not caused injury to feelings they cannot lead to any award of compensation under that heading because so to award where there had been no injury would be not to compensate but rather to punish. However, it has long been recognised that an element of aggravated damages can in some cases be included in an award for discrimination. Thus in Alexander -v- Home Office [1988] ICR 685 C.A. May L.J. at p. 692 said:-

"Nevertheless damages for this relatively new tort of unlawful racial discrimination are at large, that is to say they are not limited to the pecuniary loss that can be specifically proved. Further, even where exemplary or punitive damages are not sought, nevertheless compensatory damages may, and in some instances should, include an element of aggravated damages where, for example, the defendant may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination: see per Lord Devlin in Rookes -v- Barnard [1964] AC 1129, at 1221: per Lord Reid in Broome -v- Cassell & Co Ltd [1972] AC 1027, 1085 and per Lord Diplock in Broome's case at page 1124".

May L.J. at p. 693 added:-

".... if the plaintiff knows of the racial discrimination and that he has thereby been held up to "hatred ridicule or contempt", then the injury to his feelings would be an important element in the damages. That the injury to feelings for which compensation is sought must have resulted from knowledge of the discrimination is clear from the decision of this court in Skyrail Oceanic Ltd -v- Coleman [1981] ICR 864: see per Lawton L.J. at page 871".

In Ministry of Defence -v- Meredith [1995] IRLR 52 EAT it was - see para 24 - common ground that under the Race Relations Act an award to injury to feelings might include an element of aggravated damages. In Meredith the EAT under Mrs Justice Smith at paragraph 29 had adopted the Law Commission's summary of Lord Devlin's judgment in Rookes -v- Barnard as follows:-

"In their recent Consultation Paper No. 132 "Aggravated, exemplary and restitutionary damages, the Law Commission has summarised the basis on which aggravated damages may be granted. At para. 3.3 they said:

"In Rookes -v- Barnard Lord Devlin said that aggravated awards were appropriate where the manner in which the wrong was committed was such as to injure the plaintiff's proper feelings of pride and dignity, or give rise to humiliation, distress, insult or pain. Examples of the sort of conduct which would lead to these forms of intangible loss were conduct which was offensive, or which was accompanied by malevolence, insolence or arrogance; in other words the type of conduct which had previously been regarded as capable of sustaining a punitive award. It would therefore seem that there are two elements to the availability of an aggravated award: first exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong: and secondly intangible loss suffered as a result by the plaintiff, that is injury to personality."

This summary of the law was relied upon by the respondents and not criticised by the appellants before us. We are content to accept it".

In its para. 33 the EAT in Meredith continued:-

".... it is clear that knowledge, or at least, suspicion of the improper conduct or motive of the employer is necessary before the employee can recover aggravated damages. Only then could he show, or have the inference drawn, that his sense of injury has been justifiably heightened by this conduct or motive".

29. The subject of aggravated damages arose again in McConnell -v- Police Authority for Northern Ireland in the Northern Ireland Court of Appeal where at p. 629 in a judgment with which Campbell J. agreed, Carswell L.J. said:-

"In Winfield and Jolowicz on Tort 14th Edition page 637 it is stated:

"aggravated damages may be regarded as truly compensatory, despite the difficulty in quantifying that for which they are awarded .... It is now clear that except in the rare cases where exemplary damages are still allowed, any award must be strictly justifiable as compensation for the injury sustained".

I agree with this summary of the law and regard it as incorrect in principle to suggest, as the Law Commission does ... that aggravated damages may be partly punitive in character. It follows from these principles that an award of aggravated damages should not be an extra sum over and above the sum which the Tribunal of fact considers appropriate compensation for the injury to the claimant's feelings. Any element of aggravation ought to be taken into account in reckoning the extent of the injury to his feelings, for it is part of the cause of that injury. It should certainly not be treated as an extra award which reflects a degree of punishment of the respondent for his behaviour".

We gratefully adopt that summary.

30. With that in mind we return to the remedies decision. The Employment Tribunal held:-

"We can see no circumstances where this could be a case for an award of aggravated damages. There was nothing in our view in the original discriminatory acts which took them beyond the normal award of compensatory injury to feelings ..... The Court of Appeal in Alexander -v- The Home Office [1988] ICR 685 gave examples where an award for aggravated damages could be appropriate, for instance where a respondent behaved in a high-handed, malicious, insulting or oppressive manner in committing that act of discrimination. We do not think this to be the case in these proceedings".

Then, continuing with a citation we have already made in part, the Tribunal went on:-

"The respondent's actions were more born out of incompetence and lack of training in matters of equal opportunities as opposed to malicious intent. We find there were no aggravating factors and we firmly decline to make the award sought or at all".

31. Mr Allen complains that the approach adopted by the Tribunal seems to have been that the absence of malice was itself fatal to any claim for aggravated damages. We do not accept that. The Tribunal recognised that in Alexander -v- The Home Office what was given were merely examples of cases where an award for aggravated damages could be appropriate. When the Tribunal concluded that there were no aggravating factors they must have had in mind the whole number of the categories of cases where aggravated damages were appropriate which they had cited only a few lines earlier. It was quite unnecessary for them, having found that the respondent's actions were more born out of incompetence and lack of training, specifically to deny the presence of each separate category.
32. Mr Allen cites a passage from Alexander -v- The Home Office supra at p. 695 b-c, which, he argues, was either ignored or not properly understood by the Tribunal in our case. However, the passage was an examination of the elements relevant to quantification on the facts of that particular case. They were factors which:-

"Could legitimately have been taken into account by the Judge in aggravation of the compensatory damages to which the plaintiff was entitled" [our emphasis].

In that part of his judgement May L.J. was dealing specifically with the facts of the particular case in front of him. The principles to be drawn from the case as a whole are in the passages which we have already cited from it and we have no reason to think that the Employment Tribunal in our case did not have them fully in mind. It might be added, although the Tribunal seems not to have relied upon this, that there is nothing in the Tribunal's summary of Mr Gbaja-Biamila's evidence before them that suggested that his sense of injury had been justifiably heightened by, for example, any high-handed, malicious, insulting or oppressive manner on the Company's part in the course of its committing the acts of discrimination found against it. We are unable to find any error of law in this first head of the appeal.

There being no award for aggravated damages, we do not need to embark upon the debate as to whether any such award, if made, should be separate from the general award for injury to feelings although, had we had to do so, we would no doubt have respectfully found the logic of Carswell L.J.'s conclusion in McConnell supra (that such an award should not be separate) irresistible.

B. Liability of the individual Respondents

33. Mr Honour and Mr Streak were found liable, it will be remembered, under section 33 of the 1976 Act. As whatever they did would seem to have been done in the course of their employment by the Company it follows that the Tribunal had either held that the individuals knowingly aided the Company (and were therefore to be treated as themselves doing the unlawful acts complained of - section 33 (1)) or that they were deemed so to have aided the Company, with the same result.
34. Accordingly, when the Tribunal came to award compensation under section 56 (1) (b) it was open to it to deal with the three remaining respondents as joint tortfeasors and to make an award against all three of them jointly and severally. Mr Allen argues that had that been done it may be that one or other of the three respondents might then have sought contribution from the other or others under section 1 (1) of the Civil Liability (Contributions) Act 1978. There would then have been an apportionment under section 2 of that Act. But that was not done. It is not wholly clear where this argument is intended to lead us as Mr Allen does not argue that in point of jurisdiction it was not open to the Tribunal to award as it did (compensation to be payable only by the Company) nor does he argue that the award against the Company was not intended by the Tribunal to cover the totality of the appellant's injury by whomsoever caused, and that therefore a further award is due upon that score alone. Rather his argument is that the fact that the Tribunal did as it did indicates that, by the time the remedies award came to be made, the Tribunal had forgotten its earlier findings against the individuals.
35. As for that, the Tribunal held at the remedies hearing that the Company's actions were engendered more by incompetence and lack of training in equal opportunity matters rather than out of malice and, by denying the presence of aggravating factors as it did, the Tribunal was, in context, denying high-handedness and any insult or oppression having been intended beyond that inevitably in law deriving from the acts complained of having been voluntarily done. "Crucially", said the Tribunal the two individuals had had no relevant training and no aggravating features were found in relation to them. The proper inference, we find, is not that the Tribunal had forgotten its earlier findings but rather that the underlying bias which the Tribunal had, at the liability hearing, found to exist in Mr Honour and Mr Streak was such that, had only they been duly trained by the Company, it would not have existed or would not have been given effect. We thus do not accept that principal argument which is raised by the Appellant on this part of his case. We do, though, see force in the submission that the Tribunal should have made all three respondents jointly and severally liable and then to have left them to deal with contribution between themselves as they might. That could have been not only appropriate as a matter of law but also appropriate to have given a visible indication of the Tribunal's disapproval of their conduct. However, we are told that the sum awarded (which was plainly intended to cover all the Appellant's loss other than the loss of earnings) has already been paid in full by the Company and we shall not embark on the unnecessary exercise of setting aside the Tribunal's award merely in order to make all three respondents jointly and severally liable for a sum which has already been satisfied.

C. The proper approach to quantification of damages for injury to feelings

36. An appellate court, when reviewing the quantification of compensation by an Employment Tribunal, should not act as it would when reviewing an award of damages by a jury. In contrast to a jury, the Tribunal is expected to give reasons and hence can be judged by those reasons - Skyrail Oceanic Ltd -v- Coleman [1981] ICR 864 at 872. That is not to say that the Employment Tribunal's sovereignty as to facts is here in question. Only, firstly, if a Tribunal's given reasons expressly indicate that it has adopted a wrong principle of assessment or, secondly (that not appearing by reason of its either correctly stating the principles or stating none) where it has arrived at a figure at which no Tribunal properly directing itself by reference to the applicable principles could have arrived, will the assessment demonstrate an error of law, the only class of error which this Appeal Tribunal can correct. That second category may fairly be described as one where the award has been perverse, an award so high or low as to prompt in those aware of the relevant facts found and the applicable principles a reaction that the award was wholly erroneous, even outrageous - see also the collection of definitions of perversity in Stewart -v- Cleveland Guest (Engineering) Ltd [1994] IRLR 440 at 443. In a case such as the one before us where it is only this second category which requires to be considered (as the principles were here correctly stated by the Employment Tribunal) the Employment Tribunal should be careful not to be seduced by a feeling that "They've given more (or less) than I think we would have done" or "That was rather on the low (or high) side" into the setting aside the award in question. In this second category nothing short of perversity - a clear view that the award is wholly erroneous - enables the Employment Tribunal to interfere. As the point is put in North West Thames R.H.A. -v- Noone [1988] ICR 813 at 825 per May L.J.:-

"The Appellate Tribunal should interfere only if the award by the [Employment] Tribunal is so out of the normal run that it can properly be described as a wholly erroneous estimate of the damage suffered by the complainant".

37. But how is that sort of perversity to be judged? Something as to its presence may be gleaned from awards in other like-seeming cases or from reputable statistics or from awards in other categories of cases, although none of these is likely, alone, to provide a reliable guide. If one compares the award in an instant case with a like-seeming unappealed first instance case then at least three risks present themselves; are the facts found truly sufficiently similar to make a comparison like-with-like; has the law or the general level of damages changed since the date of the earlier case and might it not be that the award in the earlier case was left unappealed not because it was plainly right but simply because the parties settled or because one or other was unable or unwilling to fund an appeal? If, instead, one compares the award in an instant case with a judgment on appeal then the principles properly applicable will be more visible and more authoritative but the appellate body is unlikely to set out the facts as fully as they were recorded at first instance and even the first instance's versions of the facts (if still accessible) may only be an imperfect reflection of the view taken of the full evidence at first instance - see the observations of Lord Hoffmann in Piglowska -v- Piglowski [1999] 1 WLR 1360.
38. If, instead or in addition, one goes to statistics then the bracket supplied is likely to be so wide as to be virtually useless. Thus we have been taken to the figures for race discrimination awards, published in the Summer of 1997, where it is recorded that:-

"Injury to feelings averaged £4,170 (including aggravated damages) up a fifth; the median was £2,000 - up by a third. Awards ranged from £100 to £25,000 - a record high".

Whatever guidance that may have given is immediately qualified as the very next sentence shows that those averages include cases materially unlike the case before us in that:-

"Injury to feelings awards were highest in dismissal cases - £5,875 - and lowest in recruitment cases - £2,486".

A further difficulty is encountered with the statistics when we remember that the Appellant's case is not, of course, a dismissal case but neither is it an ordinary recruitment case in that Mr Gbaja-Biamila was not turned down once for one job by a prospective employer but was several times declined to be promoted by his existing employer over a period. In another table handed to us the average figure for injury to feelings awards in 1998 for race discrimination for was £3,730, down from £4,632 for 1997 and the corresponding median figures were £2,500 and £2,500. Whilst we do not choose to rely only on statistics we do comment that these statistics do not generate in us any thought that the award to the Appellant was perverse in the technical sense which we have explained or represented a wholly erroneous estimate of the damage suffered by the complainant.

39. As for awards in quite different areas of the law, we have been referred to extracts from "The Judicial Studies Board Guidelines" (4th Edition 1998) for personal injury cases and in particular to the heading "Post-traumatic Stress Disorder" which begins:-

"Cases within this category are concerned exclusively with a specific reactive psychiatric disorder, according to diagnostic criteria, in which characteristic symptoms are displayed following a psychologically distressing event outside the range of human experience which would be markedly distressing to almost everyone. Such symptoms affect basic functions such as breathing, pulse rate and bowel and/or bladder control. They would also involve persistent re-experiencing of the relevant event, difficulty in controlling temper, in concentrating and in sleeping, and exaggerated startled response".

The category largely consists of clinically observable features and is then divisible into "severe", "moderately severe", "moderate" and "minor". Even the minor category (where the bracket is from £1,750 to £3,500) contemplates full recovery requiring one to two years with only minor symptoms - presumably such things as the last-mentioned persistent re-experiencing of the event and difficulties in concentration - persisting over any longer period. The next category - "moderate" - £3,500 to £9,500 - is for where the victim is "largely" recovered and where the continuing effects are "not grossly disabling" (our emphasis). Given that in the case before us the evidence of the psychotherapist, Mr Gordon, was regarded by the Tribunal as unimpressive and to an extent self-serving, the Tribunal had little, if any, clinical evidence of any likely further persistence of symptoms beyond the hearing date in July 1998, only a few months after the Appellant was offered and took up a full-time courier position with the Company. A comparison with the JSB Recommended Personal Injury awards is fraught with innumerable difficulties if anything beyond a very global guidance is to be derived but whilst, again, we would not choose to rely on such figures alone, these recommended figures excite in us no consciousness of the presence of error in the award to the Appellant.

40. As for awards in other racial discrimination (or sex discrimination) cases, we have had a feast of both reported and unreported cases. As for the principles applicable we do not understand Mr Linden to question Mr Allen's citation from Prison Service -v- Johnson at p. 283 where the judgment of the Employment Appeal Tribunal delivered by Smith J., after referring to Alexander -v- Home Office supra and John -v- MGN Ltd (1998) 3 W.L.R. 593 C.A. continued as follows:-

"We summarise the principles which we draw from these authorities: (i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham M.R., be seen as the way to "untaxed riches". (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. (iv) In exercising their discretion in assessing a sum, Tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. (v) Finally, Tribunals should bear in mind Sir Thomas Bingham's reference to the need for public respect for the level of awards made".

41. Those principles are clear enough but it is frequently commented upon that injury to feelings is a subject which is quite beyond any uniformly applicable scientific quantification. That is recognised in Prison Service -v- Johnson supra at p.281. In Alexander supra at p. 692 May L.J. commented that it is impossible to say what is restitution:-

"And the answer must depend on the experience and good sense of the Judge and his assessors".

As was recognised in the rather different context of Thompson -v- Commissioner of Police of the Metropolis, Hsu -v- Same (1997) 3 WLR 403 C.A. at 416, circumstances can vary dramatically from case to case. In such an area consistency, however desirable in general, may prove to be an elusive chimaera and it is likely to be preferable that an Employment Tribunal, relying on that experience and good sense, should pay more respect to doing justice in the very case before it. Consequences which are not those of the racial discrimination have, of course, to be disregarded - Skyrail supra C.A. at p. 871. Nor are compensatory damages to be intended to punish - Thompson -v- Commissioner of Police of the Metropolis [1997] 3 WLR 403 at 515 C.A..

42. We were then invited to look at other cases not so much to examine the principles involved in them but more to look at awards in those cases said by one side or the other to be analogous. Thus in Singh -v- London Borough of Ealing the reporter's note of the case shows that Mr Singh was awarded £10,000 for injury to feelings, described in the note as the highest award for injury to feelings ever by then made by an Industrial Tribunal in a race case. A note in Harvey indicates an award of £40,000 for injury to feelings was made to a Mr Sam Yeboah. In Ministry of Defence -v- O'Hare [1997] ICR 306 one applicant got the "upper end" award of £10,000 and the other £500. In Racial Equality Council, Cleveland -v- Widlinski [1998] ICR 1124 £10,000 was awarded (although Mr Linden rightly comments that at first sight the Tribunal had paid at least some regard, improperly, to the employer's behaviour rather than concentrating only on injury to the employee). In Caledonian Motor Group Ltd -v- Reid EAT (unreported) 7th November 1996 £8,000 was on appeal reduced to £4,500. In LB of Hackney -v- Tiyamiyu EAT (unreported) 26th July 1996 £13,500 was cut to £7,500. For the reasons we have mentioned, a comparison between one case and another which can be seen to be truly a like-to-like comparison is seldom possible and we find no reliable direct comparisons in any of these cases. Viewing the cases to see if we can derive from them some broad indication that the award to Mr Gbaja-Biamila was wholly erroneous, we are quite unable to find it.
43. Moving from such general considerations to the more particular, Mr Allen refers to a number of citations from the liability decision either critical of the Company's behaviour or of Mr Honour or Mr Streak or supportive of the conclusion that the Appellant had a good command of English. He then goes on to argue that when, at the remedies hearing, Mrs Townsend created a more favourable impression of the Company than had been the Tribunal's earlier view, the Tribunal failed to recall the adverse criticisms that it had earlier made and failed expressly to identify the length of time over which the Company's discriminatory conduct against the Appellant had lasted. Indeed, he said, it failed even to acknowledge that there had been a course of conduct of a discriminatory nature. However, this attack is our view quite unfounded. What the Tribunal was required to assess was not conduct or a course of conduct by the company but the injury to feelings caused by that course of conduct. In any assessment of injury to feelings questions such as whether the first injury was simultaneous with the first discriminatory event, whether the injury persisted in the intervals between discriminatory events, whether each separate event added to the injury suffered or whether the complainant became enured to the events, how sensitive the complainant had proved to be and how the injury which had been suffered manifested itself and whether it was truly attributable to the unlawful discrimination are all questions which are likely to arise. How far a Tribunal deals with each question must depend, at least in part, on how far they were separately addressed in the evidence and argument laid before the Tribunal. Here the evidence was, to judge from the paragraph 4 which we have already cited, rather general. The Tribunal cannot be criticised for a rather general response to it.
44. The Tribunal indicated its view that the award of £12,000 for injury to feelings sought by Mr Gbaja-Biamila "would only be justified in the most serious of discrimination with accompanying aggravating factors". But, firstly, it is not possible to view that as if a fetter recognised by the Tribunal upon their broad discretion. Secondly, to take a very severe case of discrimination as an example, given that the award in the Prison Service case was on the "high-side" of ordinary damages and was of £21,000 for "a campaign of discrimination over a period in excess of 18 months involving exposure to humiliation, ostracism, ridicule and contempt at the applicant's place of work" and was the worst case which Smith J. and the EAT members had ever encountered, then, absent some special factors, even an award of £12,000 would be likely to be made only in a truly serious case. Moreover, we recognise the appropriateness of the Tribunal's very next comment:-

"Whilst not seeking to minimise the genuine hurt felt by this applicant we are just not approaching that parish in this case".

The Tribunal recognised that there is now no statutory limitation on compensation and (rightly, in our view) that that factor affected the degree to which earlier cases such as Noone supra can still be relied upon. They expressly referred to their taking into account their own experience of awards to injury to feelings.

45. In considering a subject as nebulous as injury caused to feelings by racial discrimination, a matter so personal to the complainant affected, so potentially variable from one complainant to another and so dependent on surrounding circumstances, the importance of the advantage enjoyed by those who have, over a period, seen and heard the complainant giving evidence is hard to exaggerate, especially where there is little or no reliable independent medical, psychiatric or psychological evidence. The Tribunal in our case had that considerable advantage; they did not expressly indicate they were relying upon any wrong principles of law. Indeed, the express directions they gave themselves are not faulted. Nor, in our view, does the figure they awarded of itself indicate that some wrong principle must have been espoused. It cannot be said to be wholly erroneous; it is not perverse. We are unable to detect any error of law in the award. We dismiss the appeal.