United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS HENRIETTA HILL (of Counsel) Messrs Akainyah & Co Solicitors 308 Seven Sisters Road Finsbury Park London N4 2AG
For the Respondents	MISS PAULINE McARDLE (Solicitor) Messrs Denton Hall Solicitors Five Chancery Lane Clifford Inn London EC4A 1BU


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a full hearing the appeal of Mr Farid Eldewiny in the matter Eldewiny v (1) City Centre Restaurants (UK) Ltd (2) Martin Baillie (3) Paul Jennings. Mr Baillie and Mr Jennings have played no part in the appeal today or, at any rate, none separate from that of their fellow respondents, City Centre Restaurants (UK) Ltd, who have appeared by Miss Pauline McArdle. Mr Eldewiny has appeared before us today by Miss Henrietta Hill who, like Miss McArdle, had not appeared below.

1. Mr Eldewiny began work for this particular employer in August 1989. He presented his first IT1 form of complaint on 9th July 1996 and in that first IT1 he claimed in his Box 1:

"Whether I have suffered racial discrimination, racial harassment and victimisation by denial of promotion, sick leave and other benefits."

He expanded that in his Box 12 saying, inter alia, this:

"With even 10 years experience in management I was denied promotion whereas a white colleague with five weeks training was made General Manager.

Since the new management took over Chiquita's there are no longer black employees in management positions as there were before the takeover.

When I applied for sick leave for the second time, upon the strong recommendation of my GP, it was refused.

I was also refused sick pay, even though I did receive it in full the first week after my hernia operation, then it was cancelled for the remaining three weeks. Yet a white assistant manager, who had been with the company less than a year received full holiday pay contrary to procedure.

During my sick leave I have been constantly harassed to return to work."

So that was the nature of the complaint in the first IT1. He presented his second IT1 on 8th July 1997 and it was that he was suffering by reason of his first complaint. Under his statement of complaint he says:

"The Applicant claims victimisation. He submits that the reason for denying him promotion a second time is the result of the IT case he lodged earlier in the Tribunal (protected action under S.2 RRA 1976) against the Respondents."

2. I will not read the ways in which the employers and the individual respondents countered those allegations. The matter went forward to a hearing at London (North) on 14th, 15th and 16th April 1999 before a panel of three, chaired by Miss A M Lewzey. It is not insignificant that the Employment Tribunal had the benefit of having the parties in front of them for three days on that occasion. On 29th April 1999, that decision was sent to the parties. It was unanimous and so far as relevant it said:

"(ii) The Applicant's complaint of direct race discrimination under his first Originating Application succeeds;

(iii) the Applicant's complaint of racial discrimination by way of victimisation in respect of failure to promote under the second Originating Application succeeds; and

(iv) the issue of remedy is adjourned …"

3. So far as concerned the first IT1 the tribunal in their paragraphs 27 and 28 said:

"… We are satisfied on the balance of probabilities that it is appropriate to draw an inference that Mr Eldewiny was harassed by the First Respondent during this period of sick leave because of his race and national origin. We are also satisfied that the refusal of sick leave and the refusal of sick pay were because of Mr Eldewiny's race or national origin. We also draw an inference that the failure to promote Mr Eldewiny was because of his race of national origin.

28. It is the unanimous decision of the Tribunal that on the balance of probabilities the First Respondent harassed Mr Eldewiny during sick leave and the First and Second Respondents refused Mr Eldewiny sick pay, refused Mr Eldewiny sick leave and failed to promote Mr Eldewiny, all of which constituted less favourable treatment on the grounds of Mr Eldewiny's race."

4. So far as concerned the second IT1 they said:

"43 The unanimous decision of the Tribunal that Mr Wilkins and Mr Jennings were motivated by the Originating Application presented in case no. 43459/96 in making their decision to refuse to promote Mr Eldewiny to the post of general manager.

…

45 It is the unanimous decision of the Tribunal that Mr Eldewiny succeeds in his complaint of discrimination by way of victimisation against the First Respondent and against the Third Respondent, Mr Jennings, in relation to the First Respondent's failure to promote Mr Eldewiny to the post of general manager."

That therefore was the conclusion at the liabilities hearing and, of course, a remedies hearing needed to be arranged, at all events if the parties did not come to terms, which they did not.

5. The remedies hearing was on 2nd August 1999 and again the tribunal (which, of course, was the same tribunal as before) was unanimous and their decision was this:

"The unanimous decision of the tribunal is that the Applicant is entitled to be paid the sum of £9,642.32 by the Respondents as compensation for the direct racial discrimination and racial discrimination by way of victimisation by the Respondents."

It is quite plain that the tribunal knew precisely what the heads of claim were for, because in their paragraph 2 they say:

"Mr Eldewiny, the Applicant, claims compensation for:

a) Past loss of earnings arising out of failure to promote him.

b) Past loss of earnings arising out of failure to pay him sick pay.

c) Future loss of earnings.

d) Injury to feelings.

e) Interest [on] those amounts."

6. On 10th September 1999 there was a Notice of Appeal lodged on behalf of Mr Eldewiny. In paragraph 6 headed "The grounds upon which this appeal is brought are that the industrial tribunal erred in law in that", it is completed with three different headings:

"1. The award with respect to injury to my feelings was inadequate in all the circumstances.

2. The tribunal erred in failing to award any compensation with respect of future loss.

3. The tribunal erred in determining that the appropriate comparator in my case would be a "notional" internal candidate and not the actual person who was appointed on the basis that he was an external candidate."

Of those three grounds, it is only the first, with regard to injury to feelings, that has been sought to be taken further before us. Miss Hill deliberately indicated that the second and third grounds were not to be pursued.

7. The Respondent's Answer dealt with the second and third points, but, of course, that falls away as irrelevant, but their answer on the first point was:

"The award made by the Employment Tribunal for injury to feelings took account of all the relevant circumstances and was in line with awards in other comparable cases."

8. So far as concerns statute, the guidance is exiguous. Section 56 "Remedies on complaint under s 54" looking at the Race Relations Act 1976, says:

"(1) Where an employment tribunal finds that a complaint presented to it under section 54 is well-founded, the tribunal shall make such of the following as it considers just and equitable-

…

(b) an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been awarded by a county court or by a sheriff court to pay to the complainant if the complaint had fallen to be dealt with under section 57.

…"

In section 57 subsection (4) is the most relevant:

"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."

So there is no division in the statute between one class of case and another one, or between one category of injury and another; there is just that very general provision as to compensation, that there may be for the avoidance of doubt an award in respect of injury to feelings.

9. We have been taken through (in outline only) many cases where awards have been made. Miss Hill has devised a neat table to which she has drawn our attention and distinctions have been sought to be made by her where the award is what she would regard as on the low side and distinctions have been made by Miss McArdle, looking at the table, where the award is in the respondents' argument on the high side.
10. It is not very useful to have such a table in the sense that a full comparison needs an examination of the facts of each particular case but the cases have been summarised for us as the table in Miss Hill's skeleton argument indicates.
11. We have also been taken to some statistical figures and one ends up, perhaps, with the rather less than illuminating consideration that recovery for awards to injury to feelings fall within the range of £500 to £34,500, a range so broad as not really to be of any material assistance although it might be said that on that basis Mr Eldewiny was, on being awarded £2,500, awarded five times the lowest figure.
12. The way in which the tribunal dealt with injury to feelings in their remedies award needs to be looked at. So far as concerns aggravated damages, which they declined to award, they said this in their paragraph 23:

"… Aggravated damages are not a separate heard of damages, but an enhancement of general damages. They are only awarded where the conduct of the Respondent has been high-handed, malicious, insulting or oppressive."

Just pausing there, we do not understand Miss Hill to say that that is an incorrect summary of the law on the subject of such cases as should attract aggravated damages. The tribunal did, in other words, act upon the correct principle of law in saying as they did. They continued:

"The Tribunal did not consider that this was the case in Mr Eldewiny's case and therefore we make no award for aggravated damages."

13. Moving from aggravated damages to general injury to feelings, the tribunal said:

"24 In relation to injury to feelings, we took into account that in this case, the discrimination was not overt, but that we drew an inference from the evidence we heard. It is not a case where there has been any suggestion of racial taunts and is far from being one of the worst cases of racial discrimination. It does not appear from the evidence that this is a continued campaign of racial discrimination. A number of instances of discrimination have been found which have continuing consequences. …"

In paragraph 25 they say:

"In reaching our decision on the award for injury to feelings, we took into account the guidance given by the Employment Appeal Tribunal in Armitage, Marsden and H M Prison Service v Johnson [1997] IRLR 162. Contained in that guidance was that awards for injury to feelings are to be compensatory and should be just to both parties. They should not be too low nor should they be excessive and should bear some broad general similarity to the range of awards in personal injury cases. We also reminded ourselves of the value in everyday life of the sum that we considered. … We believe that this is a case that falls within the lowest bracket and it is the unanimous decision of the Tribunal to award the sum of £2,500 in respect of injury to feelings."

14. Having in mind the address we have received in relation to statistics and by way of an analysis of the cases as indicated in Miss Hill's summary, we are unable to detect any wrong principle of law being there applied. Indeed, we do not understand Miss Hill to be saying that a wrong principle of law was here stated by the tribunal or acted upon by the tribunal.
15. Turning, then, to whether the award is so out of line with what the general run of similar cases should indicate, we have to say that this award occasions in us no distaste or surprise of the degree such as that with which, we would hope, we would greet an award that was wholly unfitting to the case concerned. We look at the statistics and compensation awards for 1999: Table 2 Awards for injury to feelings, 1999 (1998 figures in brackets):

" Average Median

Race discrimination £5,297 (£3,730) £3,000 (£2,500)"

Amongst the commentary under Table 2 is this:

"just over two in five awards for injury to feelings in race cases were for £5,000 or more, compared to three in 10 awards in disability cases and one in four in awards in sex cases;"

Miss McArdle, not unreasonably, converts that first figure - just over two in five awards for injury to feelings were for £5,000 or more - to an argument that just under three in five awards for injury to feelings in race cases were for £5,000 or less.

16. We recognise, as is cited in Armitage and in Gbaja-Biamila v DHL International (UK) Ltd [2000] ICR 730 and a number of other cases, that the role that the EAT is able to play in this area is really a limited one. So long as no wrong principle of law has been adopted by the tribunal concerned, one has to see whether the award is so out of line as to excite the sentiment that it must surely have been perverse. Looking at the statistics and at the analysis of the cases, we do not see this to be so out of the normal run as to be a wholly erroneous estimate of the damage suffered by the complainant, which is one of the tests which the cases invite us to consider. It cannot be that the tribunal did not have in mind the elements of repetition, of the duration of the injury to feelings or the duration of the period during which injury to feelings might have been suffered. It cannot be said that they did not have victimisation or harassment in mind. All of those are factors to which they specifically referred.
17. A factor which is tolerably unusual, although far from unique, is that here the employee stayed in the same employment. What he suffered was not such injury to feelings as drove him out of the employ of the employment concerned. Nor is it a case where there was any psychological or psychiatric or medical evidence of any significance laid before the tribunal. Nor is it a case where one could say that the tribunal was over-concerned with preserving the reputation of the employer. On the contrary, at several points in both the liability award and in the remedies award, the tribunal was critical of the performance of the company. Another feature (and it is relative to citations which Miss Hill makes from the witness statement of Mr Eldewiny) is that we do not have Chairman's notes of oral evidence and both parties' representatives who have appeared before us today were not present below. We cannot take it that simply because a thing is said in the witness statement of a party that it was accepted by the tribunal as being the case.
18. So far as concerns aggravated damages, as we mentioned, a proper principle of law was adopted by the tribunal and we cannot say that it was wrong of the tribunal not to have awarded aggravated damages. The guidance given by the Alexander v Home Office [1988] IRLR 190 in particular, seems to have been adequately summarised by the tribunal and to have been in the tribunal's mind.
19. It might be that had we been the tribunal we would have given a higher figure. We cannot be sure, of course. The tribunal had the immense advantage that they did have the parties in front of them for three days at the liability stage and a further day at the remedies stage. As the Gbaja-Biamila case draws attention to, that is a significant advantage. In that case the EAT said in the concluding paragraph:

"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 that 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. …"

That last paragraph in Gbaja-Biamila could be our last paragraph in this case. It is as appropriate, in our view, to this case as it was in that case.

20. The remedies hearing led to a conclusion, as we have said, that the applicant was awarded £9,642. The award has all the appearance of a careful and conscientious calculation of what was appropriate in the case. We do not find that we have any sufficient ground as an Employment Appeal Tribunal able to deal only with points of law to interfere with the conclusion of that panel and, all in all, we therefore must dismiss the appeal.

[Following an application by Miss Hill, on behalf of the appellant, for leave to appeal to the Court of Appeal]

21. Leave to appeal to the Court of Appeal is refused.