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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> West Yorkshire Police v Vento [2004] UKEAT 522_01_0412 (4 December 2001)
URL: http://www.bailii.org/uk/cases/UKEAT/2001/522_01_0412.html
Cite as: [2002] IRLR 177, [2004] UKEAT 522_1_412, [2004] UKEAT 522_01_0412
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Appeal No. UKEAT/522/01
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 19 October 2001
Judgment handed down on 4 December 2001
Before
THE HONOURABLE MR JUSTICE WALL
THE CHIEF CONSTABLE OF WEST YORKSHIRE POLICE APPELLANT
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
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And MR D JONES (of Counsel) Instructed By: West Yorkshire Police Headquarters Legal Services Dept PO Box 9 Laburnum Road Wakefield WF1 3QP
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And MS J WOODWARK (of Counsel) Instructed By: Messrs Veronique Marot & Co Solicitors 36 Newlay Lane Horsforth Leeds LS18 4LE |
MR JUSTICE WALL:
1 In this appeal, the Chief Constable of the West Yorkshire Police (the Appellant) challenges an order made by the Employment Tribunal at Leeds which was promulgated on 5 March 2001 following a hearing on 12, 13, 14, 15 and 20 February 2001. The decision currently under appeal is that given at the remedies hearing in proceedings between the Appellant and Mrs A. Vento, who was the Applicant before the Tribunal and is the Respondent to this appeal (the Respondent). .
2. By her Form IT1, dated 10 February 1998, the Respondent claimed against the Appellant unfair dismissal and racial / sexual discrimination. In the event, it was the allegations of racial and sexual discrimination which were adjudicated upon in a liability hearing held by the Tribunal at Leeds on 19-22 July 1999, 26-30 July 1999, 3, 6, 7 and 13 September 1999 when the decision was reserved. The Reserved Decision was sent to the parties on 4 October 1999. The unanimous decision of the Tribunal was that the Appellant had vicariously committed acts of discrimination contrary to Part II of the Sex Discrimination Act 1975. The complaint of racial discrimination was dismissed, and the remedy hearing was directed to take place on a date to be fixed.
3. The Appellant appealed the liability decision of the Tribunal to the Employment Appeal Tribunal, and on 8 June 2000, a division of the EAT presided over by Lindsay J (the President), dismissed the Appellant’s appeal. The judgment of the EAT, given by the President, is in our papers.
4. The unanimous decision of the Tribunal on the remedy hearing was in the following terms:
“(i) We recommend that:
(a) within 14 days of the date of promulgation of this decision, the [Appellant] shall send or cause to be sent a written apology to the [Respondent], marked for the attention of prospective employers of the [Respondent] and in terms of the second paragraph of the witness statement of Philip Brear dated 13 February 2001;
(b) the said Philip Brear, as Deputy Chief Constable, within three months of the date of promulgation of this decision, interviews separately Assistant Chief Constable Wilkinson, Chief Superintendent Bonnard, Police Sergeant Rushton, Police Sergeant Bruce and Police Constable Knopwood. We recommend further that at each interview Mr Brear discusses with the interviewee those parts of the tribunal decision sent to the parties on 4 October 1999 and the Employment Appeal judgment sent to the parties on 20 July 2000 which affect the individual Officer and invites each of them to apologise in writing to the [Respondent]. Finally, we recommend that Mr Brear reports in writing to the [Respondent] or her solicitors, when he has completed the last of the five interviews, giving details as to when each interview took place and whether or not the invitation to apologise was accepted in each case.
(ii) We award compensation to be paid by the [Appellant] to the [Respondent] as follows:
(a) Such sum as after deduction of tax at the [Respondent’s] marginal rate in the year or years of assessment shall leave in her hands the sum of £165,829.
(b) The sum of £65,000 for injury to feeling.
(c) The sum of £9,000 for personal injury; and
(d) The sum of £18,015 for interest.”
5. The total award by the Tribunal amounts, accordingly, to £257,844.
6. In mounting their attack on the award, Mr David Bean QC and Mr David Jones concentrated their fire on items (ii) (a) and (b). Their argument, in summary, was that there was no evidential basis upon which the Tribunal could properly award the sum of £165,829 for future loss of earnings; and that the award of £50,000 for injury to feelings plus £15,000 by way of aggravated damages was so manifestly excessive as to amount to an error of law. As to the recommendations under section 65(1) of the Sex Discrimination Act 1975, Mr Bean told us that item (i)(a) had been implemented, and that there was no appeal against it. The appeal was, however, maintained as against item (i)(b). As to the sum £9,000 for personal injury, Mr Bean acknowledged both that there was material upon which the Tribunal could make such an award, and that the award itself was not, on its face, excessive. He did not, accordingly, pursue the appeal in relation to that sum. Interest under (ii)(d), of course, depends upon the ultimate amount awarded.
7. For the Respondent, Mr Christopher Jeans QC and Miss Jane Woodwark argued that the figures awarded by the Tribunal were within the proper exercise of a judicial discretion applied to the facts of the case, and should not, therefore, be interfered with. In addition, the Respondent cross-appealed against the decision of the Tribunal to deduct from her award the element of State benefits which she argued was paid by way of income support in respect of her children and mortgage interest. Counsel argued that this was an error of law by the Tribunal, and erroneously allowed the Appellant’s discriminatory acts to be subsidised at the State’s expense. We will, of course, return to deal with this argument in due course.
The Facts
8 Mr Jeans and Miss Woodwark invited us to pay particular attention to the Tribunal’s findings of fact in this case, which, they argued, demonstrated that it was one of exceptional seriousness. We have, of course, read the judgment of the Tribunal (identically constituted) in the liability hearing. We have also read the judgment of Mr Justice Linday given in the EAT on 8 June 2000. The reasons given by the Tribunal in the liability hearing run to some 87 paragraphs over 35 pages. Mr Justice Lindsay’s judgment runs to some 47 paragraphs over 24 pages and Mr Jeans’ and Miss Woodwark’s synopsis of the history runs to some 8 pages. It is impossible in this judgment to give anything other than a synopsis. For present purposes, therefore, we are content to adopt paragraph 2 of Mr Jeans and Miss Woodwark’s skeleton argument, headed “Introduction” which reads as follows:
“[The Respondent] was a probationer constable. When her marriage broke down, leaving her a single parent, she felt ‘a change in attitude’ towards her from her superiors … . As the Tribunal was to find, they began to show an unwarranted interest in her private life and she became the victim of bullying, undue scrutiny, unwarranted criticism and sexual harassment. When a man with whom she worked was also criticised, it was a façade to create an appearance of consistency. Those responsible for deciding her future formed a (gender stereotyped) view hat she was a probationer struggling because of domestic circumstances. The Tribunal found that such a negative view, which brought about the termination of her service, would not have been adopted towards a man in like circumstances. The Appellant sought to explain the adverse treatment of her by reference to her performance and in particular her supposed dishonesty. The Tribunal found however that, time and again, attempts to portray her actions as dishonest or incompetent were unwarranted or unfairly exaggerated. Those attempts were themselves a reflection of the bullying and discriminatory attitude adopted towards her by the force.”
9. We have, as we have said, read the detail of the history and the findings of the Tribunal, and we take them fully into account. We do not, however, think it necessary to set out the facts in any greater detail in this judgment save to record the bare dates. The Respondent was born on 15 February 1967. She joined the West Yorkshire police force as a probationary Constable on 11 December 1995, when she was 28. The Appellant dispensed with her services under Regulation 15 of the Police Regulations 1995 on 8 December 1997, when she was 30. She was, accordingly, a member of the police force for a little under two years. She is now 34.
By her marriage (now dissolved) she has three children aged 13, 10 and 8, for whom she is responsible.
The award of £165,829
10. This award relates to future loss of earnings, and critical to it is a finding by the Tribunal that there was a 75% chance that the Respondent would have completed a full police career to retirement at aged 55 had it not been for the conduct of the West Yorkshire Police in discriminating against her and dismissing her. Mr Bean’s simple submission on this part of the case is that there was no evidence upon which the Tribunal could properly make that finding.
11. Having set out, in paragraph 11 of their Reasons, the Respondent’s determination to pursue her career, despite the domestic difficulties it caused with her husband, and her determination to continue to support her children financially, the Tribunal summarised statistics which were provided to it in the course of the hearing:
“12 Set against those facts was statistical evidence to show that in the period 1989 to 1999, 345 women constables had left the [Appellant’s] force. Of that number, only 49% had served over eight years. The statistics for male leavers were significantly different. In the same period, 1,310 male officers left the [Appellant’s] force. Of those, 49.7% served over 18 years. It is to be remembered that we are looking at the [Respondent’s] case at a period of 21 years to her attaining the age of 55. In that respect, the statistical evidence showed that only 9% of women police officers who left in that period served for over 18 years.”
12 The Tribunal’s Reasons continue:
“13 The [Appellant’s] Force is seeking, however, to lead the way in the introduction of ‘family friendly’ working conditions. The [Appellant] is anxious to retain experienced manpower. Furthermore, we note that there has been considerable social change in the 10 year period between 1989 and 1999. The [Respondent] is unable to have any more children. We say that bearing in mind the Deputy Chief Constable’s observations as to why he had experienced police constables leaving the force. The [Respondent] demonstrated determination in the face of adversity and showed a strong desire to provide materially for her children. Drawing together the [Respondent’s] determination, changing social conditions and the desire to provide for her children, we have decided that there was a 75% chance that the [Respondent] would have completed a full Police career had she not been dismissed.”
13 As Mr Bean readily accepts, statistical evidence is in no sense the be-all or end-all of the exercise of a Tribunal’s discretion when making an assessment of future loss of earnings. He makes the point, however, that if a Tribunal is to depart from the evidence provided by a statistical data, particularly in so dramatic a fashion as this Tribunal has departed from the statistical data provided to it, clear and cogent reasons are needed. Statistics, in this context, he submitted are an important consideration in assessing what happens in real life. For that proposition he relied on the decision of the EAT presided over by Morison J in Ministry of Defence v Cannock [1994] ICR 918 at 952 – E. The case, of course, relates to the prospects for women who return to work after pregnancy and childbirth, but the case does, nonetheless, give helpful guidance and lay down a general approach.
“The next question relates to the length of service, if any, which the woman has hypothetically lost. Again, statistics are going to prove a good starting point. Although the pension statistics referred to in the government actuary’s paper, contained in appendix 3 to the pay review body’s 1991 report, refer only to men, it is not without significance that, despite what might be regarded as the allure of an early pension, slightly under half the male officers stay in the service for 16 years, very few (12 per cent) other ranks serve for 22 years. Assuming the figures were no different for women, tribunals might wish to reflect carefully on the proposition that the applicants should be given compensation on a long-term career basis. The chances must be assessed sensibly having regard to what happens in real life.
The same applies to the possible extension of her period of service. In Mrs Hadley’s case the industrial tribunal said:
‘In addition to finding that she would have been promoted to chief petty officer we are satisfied, and find, that she would have extended her service to 22 years on promotion to chief petty officer and that her engagement would not then have ended before 2 October 1999’.
That approach is not correct, though it is one which the industrial tribunal were invited to follow. It is not a question of making a ‘finding’ and then using some kind of arbitrary discount. The further into the future the industrial tribunal is looking the more uncertain everything becomes. Further, in making their assessment of the chances, industrial tribunals are entitled to take account of what is known, including the cutback in the number of people in the Service.
Next, the question of promotion. There is many a slip between cup and lip, and tribunals should be wary of assessing the chances of promotion on the high side. It is not a question of fact; it is a question of assessing the chances and applying the percentage figure to the higher pay.”
14 Although no question of promotion arises in the instant case, we agree with Morison J’s cautious approach. Mr Bean argues that the Respondent had served less than two years as a probationer. She had been off duty through sickness, and for part of the two year period her work had not achieved an adequate standard. She had suffered from a depressive illness, the principal cause of which was agreed by the medical experts to be the breakdown of her marriage, although the unlawful discrimination she had suffered had contributed to it. This, Mr. Bean argued, was the working history from which the Tribunal had to project the Respondent’s future career prospects. He criticised the Tribunal for not taking into account the fact that the short period the Respondent was in post rendered the projection for the future all the more speculative. He submitted that the Tribunal gave an undue weight to its own assessment of the Respondent in the witness box as a reliable foundation for predicting her abilities to cope with a highly stressful occupation, in which most female Officers serve for nor more than eight years, and no more than half of male Officers serve up to retirement age. He accepted, however, that amongst the relevant considerations which the Tribunal would need to take into account were the Appellant’s attempts to introduce family friendly working condition, and the fact that the Respondent was unable to have any more children. However, he argued that such considerations did not warrant a major departure from the statistical evidence relating to service.
15 In response to these submissions, Mr Jeans argued that the percentage prospect that the Respondent would remain until retirement age in the Police Force was an issue exclusively for the Tribunal which did not involve any question of law. It involved an assessment of the Respondent as a witness, and findings of primary fact about her previous career. It was also of course an exercise in prediction which could not be wholly scientific. He relied on Nohar v Granitstone (Galloway) Ltd [1974] ICR 273, and emphasised the Tribunal’s freedom to depart from statistics in dealing with the individual case. He emphasised the points conceded by Mr Bean, namely the introduction of family friendly working conditions, the Appellant’s established need to retain experienced manpower and the considerable social changes which have occurred since 1989. He also emphasised the Respondent’s personal circumstances including the fact that she could not have any more children and the determination in the face of adversity which she had shown. He described the Tribunal’s reasoning on the issue as a “model of clarity” and submitted that its conclusion was one which was plainly open to it as an arbiter of fact.
16 Despite the attractive presentation of Mr Jeans’ argument on this point, we are quite unable to accept it. We have no doubt at all that the Tribunal fell seriously into error in assessing the Respondent’s future loss of earnings on the basis of a 75% chance of her serving in the Police Force to the age of her retirement. She had in fact served less than two years as probationer. The vicissitudes she had undergone during that period were by no means entirely due to the treatment she received at the hands of the Appellant. As recorded in paragraph 14 above, the respondent had suffered from a depressive illness, largely consequent upon the breakdown of her marriage; she had been off duty through illness and at times her work had not achieved an adequate standard.
17 On the statistical evidence, only 9% of women serve more than 18 years. Even taking into account the fact that the Respondent was unable to have any more children, and making full allowance for the social changes which had occurred since some of the women who were the subject of the survey had begun their police careers, we can see no proper basis upon which the Tribunal could have been justified in departing so radically from the figure of 9% in order to reach the finding that the Respondent stood a 75% chance of remaining in the Police Force until retirement. Even if the figures for men are adopted, for which it would be difficult to find a rationale the chance does not exceed 50%.
18. We have set out the passage in the Tribunal’s reasons which contains the explanation it gives for its assessment of the Respondent’s chance of completing a full police career. That passage, in our judgment does not give any adequate reason for departing from the figure of 9% and reaching 75%. Accordingly, both the size of the award and the lack of sound reasons to support it represent, in our judgment, errors of law sufficient to make it necessary for the award under paragraph (ii)(a) of the decision to be set aside. At the same time, we plainly do not have the material upon which we can make the appropriate assessment, and it will be necessary for this part of the case to be remitted to a freshly constituted Tribunal for the figure under this head to be re-assessed.
The sum of £65,000 for injury to feelings
19 Mr. Bean argues that to award a sum of £50,000 for injury to feelings plus £15,000 by way of aggravated damages is so excessive as to amount to an error of law. He submits that the figure is wholly disproportionate to the findings of the Tribunal as to the content, intensity and frequency of the discrimination and its effect on the Respondent. He says that the Tribunal failed to apply the guidelines given by the EAT in the case of Tchoula v ICTS Ltd [2000] IRLR 645 or the principle that awards of injury to feelings should have a broad general similarity to the range of awards in person injury cases. He also argues that the Tribunal failed to adopt a global approach to the evaluation of the award given that it included a claim for psychiatric injury. Finally, he argues that the Tribunal wrongly took into account the conduct of the Appellant in defending the proceedings, and allowed feelings of indignation to inflate the award.
20. In her answer, the Respondent defends the Tribunal’s assessment of the injury to her feelings and the award made. She argues that it fully reflects the Tribunal’s finding, both on the evidence adduced at the remedies hearing and in its findings on liability. She argues that the level of the award reflects the full range of matters which are to be taken into account when considering personal injury and that the Tribunal was entitled to make findings of fact which justified awarding a separate head of damage for psychiatric injury. On the subject of aggravated damages, she argues that the award was justified by the high-handed conduct of the Appellant and that the Tribunal was entitled to take into account the manner in which the Appellant defended the proceedings.
21 The manner in which the Tribunal approached the matter was to remind itself of Armitage v Johnson [1997] IRLR 162 and ICTS (UK) v Tchoula [2000] IRLR 643. In Armitage v Johnson the Tribunal noted that the Applicant, an auxiliary prison Officer, had been subjected to an 18 month campaign of appalling treatment on racial grounds. The Tribunal in that case commented that it could scarcely begin to imagine the stress of working in such an environment. The award in that case was £21,000 for injury to feelings and £7,500 for aggravated damages.
22 The Tribunal was also referred by Miss Woodwark for the Respondent to the recent unreported decision of the London Central Employment Tribunal in the case of Virdi v The Commissioner of Police of the Metropolis [8 December 2000] in which a male Sikh Police Sergeant had been awarded £100,000 for injury to feelings, with a further sum of £25,000 for aggravated damages. The Tribunal noted that in that case the Officer was dismissed after he had been falsely accused of sending racist hate male to himself and other ethnic minority officers and civilian staff. After describing the discrimination which Mr Virdi had suffered, the Tribunal commented:
“46 … In making the award for injury to feelings, the tribunal took account of the ongoing nationwide publicity surrounding the case, which had been largely generated by the [police], and the damage to the [Respondent’s] reputation. They compared the treatment of the [Respondent] [in that case] to that of a well-known TV personality who had been awarded £100,000 damages. Miss Woodwark in her submission compares the [Respondent’s] case with an even more recent award in defamation proceedings in favour of the Chairman of Tottenham Hotspur Football Club, who had been accused by a newspaper of being miserly in his support for the Club.”
23 In our judgment, the Tribunal was right in the instant case made it clear that it avoided such comparisons, because, as it pointed out, they could be misleading for a number of reasons, “not least the differences between the statutory torts and the common law tort of defamation and the different forums”. We respectfully agree. We were shown a copy of the decision in the case of Virdi v The Commissioner of Police of the Metropolis, and we are quite satisfied that it is a wholly exceptional case, which does not form any proper basis for comparison with the case before us. We do not, accordingly, find that the case of Virdi v The Commissioner of Police of the Metropolis assists us in the assessment of the award of damages to the Applicant under the heading of “injury to feeling”.
24 The Tribunal’s Reasons, however, continue as follows:
“47 … Nevertheless, it is fair to say that the [Respondent] has been put through four dramatic years by the conduct of the [Appellant’s] Officers. The process started with the bullying of her in January 1997. That contributed to her clinical depression diagnosed in May of that year. It reached its zenith with the July tutorial, following which the [Respondent] went off sick. When she returned to work in October, she faced the two case conferences at the beginning and end of November. She then had the shock and disappointment of dismissal in December, followed by these proceedings which were started in February of 1998. She had to prepare herself for a hearing in June which was aborted after three days. It took another 13 months to get the case back here for a hearing at which the [Respondent’s] private life was subjected to minute scrutiny. The legal process attracted media attention, which exacerbated the blackening of the [Respondent’s] character. Having been vindicated by our decision, the [Respondent] then faced the uncertainty of the appeal. Even then, she was unable to put this matter behind her, having to wait until now for our decision on remedy with the prospect of having to give evidence yet again. Finally, she has lost a satisfying and genial career. For all that and the other matters described above by the [Respondent] we think that £50,000 is an appropriate sum to award.”
25 The Tribunal then goes on to deal with the question of aggravated damages. It does so in these terms:
“48 We find also that the [Appellant] and his officers have throughout acted in a high-handed manner. First, they unreasonably condemned the [Respondent] as dishonest. They raised questions about her private life which had little or nothing to do with her conduct or capability as a police officer. They persisted in those matters throughout these proceedings until the appeal was lost. The [Appellant] then made what we regard as a cynical offer of reinstatement, principally designed to limit the financial damage to the [Appellant’s] resources. The apology from the [Appellant] came very late in the day. There has been no apology from the five officers who are the subject of our second recommendation. The Deputy Chief Constable attended the hearing not having read our decision or that of the Employment Appeal Tribunal and, therefore, not really knowing for what he was apologising on behalf of the [Appellant]. We characterise the [Appellant’s] attitude and that of his officers to this case as one of institutional denial, that is a refusal to see that supervising officers had throughout treated the [Respondent] unreasonably, a refusal or inability to see that a view of the [Respondent’s] sexual morality had improperly coloured officers’ judgements and a failure to ask the fundamental question as to why these things had happened. In all those circumstances, we have decided that the award for injury to feelings should be increased by a further sum of £15,000 on account of aggravation. The aggregate is £65,000 which we note is about three times a police officer’s current annual gross salary.”
26 Mr Bean and Mr Jones complain that whilst the Tribunal made reference to the cases of Tchoula and Armitage, and the principles established by those cases, it failed to apply them. In particular, they argue, the Tribunal failed to consider that awards for injury to feelings should have a broad similarity to the range of awards in personal injury cases. In these circumstances, they submit that the award of £50,000 is one which no Tribunal properly directing itself could have arrived and is accordingly perverse.
27 Mr Bean and Mr Jones made reference to the Guidelines set out by the Judicial Studies Board which indicate that the highest bracket for injuries of a psychiatric nature ranges from £27,500 to £57,500. Such cases involve persons who have marked problems with the range of factors including an inability to cope with life and work, difficulties in personal relationships and poor prognosis for future treatment. They identified four recent cases in which awards in the bracket £45,000 to £55,000 were made to claimants who had serious and permanent symptoms far graver than those of the Respondent in the instant case.
28 Mr Bean and Mr Jones also complain that the Tribunal failed to step back and consider the overall award, notably in the context of the extent to which injury to feelings overlapped with psychiatric injury, for which a further award of £9,000 was made by the Tribunal. Mr Bean also complained that in awarding aggravated damages the Tribunal wrongly took into account the issues raised by the Appellant in pursuit of the defence to the claim, and argued that aggravated damages were not to be used as a form of punishment. Adding in the £9,000 for psychiatric injury, Mr Bean argued that the total of £74,000 was manifestly excessive and was only explicable on the basis that the Tribunal had allowed feelings of indignation to inflate the award.
29 For the Respondent, Mr Jeans and Miss Woodwark sought to support the award on the basis of the content, intensity, and frequency of the discrimination suffered by the Respondent and its effect upon her. They submitted that the Respondent was subjected to prolonged periods of discriminatory conduct, culminating in the termination of her career. It was both perpetrated and condoned by a large number of Officers, including very senior Officers who were responsible for that termination; it occurred over the extended period of her engagement as a probationer; it involved character assassination, invasion of privacy, intensive and unfair pressure, and the destruction of all her hopes and ambitions.
30 Mr Jeans and Miss Woodwark sought to distinguish Tchoula on the basis that discrimination occurred in that case over a short period and relieved the Applicant of a job he disliked. They also point out that in that case it was expressly accepted by the EAT that continuing or repeated acts which result in the loss of congenial employment merit high awards. They argued that the fixing of the amount was not a precise science and that it was not possible or desirable to attempt to draw direct comparisons with personal injury damages. They also pointed out that in their Reasons for awarding the £9,000 by way of personal injury the Tribunal expressly had regard to the Judicial Studies Board Guidelines. They criticised the suggestion that the Tribunal was obliged to “lump together” the awards for psychiatric injury and for hurt feelings. They argued that where, as the Tribunal found here, it is possible to do so it must be in the interests of clarity to make separate awards or to show the award is broken down between the two.
31 Mr. Jeans and Miss Woodwark defended the Tribunal’s criticism of the Appellant’s conduct of the proceedings and argued that once an individual has suffered injury to feelings, that injury may be lessened by an employer’s conduct, in which case the compensation will be lower; alternatively it may be exacerbated (as here) by high-handed conduct in the manner of defending the proceedings, compounding the intrusion into privacy, and cynical conduct comprising an insincere apology designed only to reduce liability. In the latter case, they argued, the compensation would be higher. It cannot be open to a wrongdoer to argue that the award should be less because the suffering would have been less if he had acted decently after the event. They argued, accordingly, that it was right in principle that the conduct of the proceedings should be relevant to the assessment of loss, or the extent of aggravation of loss. In this context they relied on McConnell v Police Authority for Northern Ireland [1997] IRLR 625 at 630 and on Tchoula. They invited us to reject the proposition that the Tribunal was motivated by indignation, and argued that the Tribunal was entirely justified in its findings, particularly in relation to reinstatement.
32 On this aspect of the matter, we are of the clear opinion that the overall award of £74,000 for injury to feelings, personal injury and aggravated damages is too high. We accept the submission made by Mr Bean and Mr Jones that the Tribunal failed to apply the wealth of cited authorities to the nature and extent of the injuries in this particular case.
33. However, before reaching our overall conclusion on this part of the case, we think it appropriate to set out the Tribunal’s reasoning in relation to the additional award of £9,000 for personal injury, which we do not find excessive, and with which we are not minded to interfere. In reaching that award, the Tribunal said this:
“49. Finally, whilst the medical experts acknowledge that it is sometimes difficult to disentangle injury to feeling and psychiatric damage, we think it possible to do so in this case. We have found that the conduct of the [Appellant’s] officers contributed to the [Respondent’s] clinical depression in the Spring of 1997. Furthermore, the whole experience has left the [Respondent] with an adjustment disorder which has lasted more than three years. Fortunately, the prognosis is good. In reaching our decision on this head of damage, we have looked at the Judicial Studies Board’s Guidelines for the Assessment of Damages in Personal Injury Cases. In particular, we have looked at damages both for psychiatric damage generally and post-traumatic stress disorder. We find that, in either category, this case falls within the moderate range. In the case of psychiatric damage, that is defined as a situation where there will have been marked improvement by now in the [Respondent’s] ability to cope with life and work, the effect on her relationship with family, friends and whose with whom she comes into contact, the extent to which treatment has been successful and future vulnerability. In the second category, the injured person will have largely recovered and any continuing effects will not be grossly disabling. The combined range is £3,000 to £10,000. Given the length of time over which the [Respondent] has suffered from the adjustment disorder, we think this case falls within the upper end of the bracket and we assess damages under this head in the sum of £9,000.”
34. In our judgment, the Tribunal’s assessment of £9,000 under the head of “Personal Injury” cannot be said to be excessive or in any way to demonstrate an error of law. We did not understand Mr Bean to argue otherwise. However, in our judgment, the correctness of the award under this head serves principally to highlight the excessive figures for injury to feelings and aggravated damages.
35 In our judgment, the overwhelming weight of authority cited by Mr Bean and Mr Jones demonstrates that the award made by the Tribunal for injury to feeling in the sum of £65,000 (to include £15,000 for exemplary damages) is well outside the range which any Tribunal properly directing itself to those authorities would have made. Ironically, two of the cases most in point are Armitage and Tchoula both of which are cited by the Tribunal, but neither which, in our judgment, is applied by it. Since we take the view that the award of £65,000 is plainly wrong, and as we have the material upon which we can form our own assessment, this is what we propose to do.
36 The case most in point seems to us to be Armitage. There, the Applicant received £21,000 and £7,500 for aggravated damages. For the reasons which they give, we do not think it unreasonable for the Tribunal in the instant case to have made an award of aggravated damages, although we think the figure excessive. Given that Armitage was decided in 1997, and given also that we think the figure for exemplary damages manifestly excessive, we have come to the conclusion that the proper awards here are £25,000 for injury to feelings, £5,000 for aggravated damages, and £9,000 as found by the Tribunal for personal injuries. This is, approximately, a little over half the global award made by the Tribunal, and in our judgment is in line with the authorities on these three heads.
The offer of reinstatement
37. In our judgment, the Tribunal was entitled to find that the offer was a cynical one, and we are also of the opinion that the Tribunal, on the available material, was entitled to find that the Respondent was herself reasonable in rejecting it. In any reassessment, therefore, of her compensation for loss of future earnings, the fact that she rejected the offer of reinstatement should not, in our judgment, be taken into account.
38 Before returning to the question of the recommendations made by the Tribunal, we need to deal with the Respondent’s cross-appeal. This is formulated in the following way:
“The Respondent appeals from the decision of the tribunal to deduct state benefits paid in respect of the Respondent’s children and mortgage interest.
The Employment Tribunal erred in law in setting off the said benefits as they were paid to the Respondent for her children and in respect of her household’s circumstances. In making the said deduction the tribunal erroneously allowed the Appellant’s discriminatory acts to be subsidised at the State’s expense.”
39 This ground of appeal arises because the Respondent was for a time in receipt of Income Support, part of which was calculated on the basis that she was the mother of three dependent children. The Tribunal dealt with this point succinctly. In paragraph 33 of the Reasons it said:
“33 Miss Woodwark has argued that we should only give the [Appellant] credit for State benefits personal to the [Respondent] on the basis that she somehow holds the elements of State benefit for her children on trust for them. No authority has been produced for that proposition. We prefer Mr Jones’ submission in that regard and his reliance on the decision of the House of Lords in Hodgson DJ v Trapp [1989] AC 807. There is nothing in the benefits paid to the [Respondent] to indicate any power in any of the State Agencies to recoup benefits paid out of our award.”
40. Mr Jeans and Miss Woodwark rely on the principle in tort that a claimant must be compensated for loss suffered by him. This means, they argue, that, subject to any statutory provisions on the point, a defendant’s liability should be reduced only where the claimant’s loss has been diminished in whole or in part by a benefit received from a collateral source by reason of the wrong. They accept, accordingly, that in this case the Respondent’s claim is properly diminished by benefits paid in respect of her own loss. However, they argue it should not be diminished by a benefit which is paid for her children or household. In the alternative, they argue that if the benefits must be taken into account because they are paid to her, then they fall within a recognised exception to the general principle, namely where the benefit is not intended to enure to the advantage of the wrongdoer.
41. The main thrust of Mr. Jeans’ and Miss Woodwark’s argument is that Parliament cannot have intended that an allowance for children or for the household in the assessment for Income Support should go to reduce an employer’s liability for sex discrimination. They point out that in the fields of both personal injury and unfair dismissal Parliament has legislated for the recoupment of benefits to the State from the wrongdoer, but that no such provision has been made in the context of sex discrimination. They argue that it is difficult to attribute to Parliament (or to the silence of Parliament) any intention to give a discriminator the benefit of support payments made for third parties, and in relation to housing benefit they point to the unfair dismissal case of Savage v Saxena [1998] ICR 362.
42 In response, Mr Bean and Mr Jones repeat the argument based on Hodgson-v-Trapp [1989] AC 807. They rely in particular on the passage from the speech of Lord Bridge at page 819 where he stated that damages for negligence were intended to be purely compensatory, and that it was the net consequential loss and expense which the court had to measure. Lord Bridge continued:
“If, in consequence of the injuries sustained, the plaintiff has enjoyed receipts to which he would not otherwise have been entitled, prima facie, those receipts are to be set off against the aggregate of the plaintiff’s losses and expenses in arriving at the measure of his damages. All this is elementary and has been said over and over again. To this basic rule there are, of course, certain well established, though not always precisely defined and delineated exceptions. But the courts are, I think, sometimes in danger, in seeking to explore the rationale of the exceptions, of forgetting that they are exceptions. It is the rule which is fundamental and axiomatic and the exceptions to it which are only to be admitted on grounds which clearly justify their treatment as such.”
43 Mr Bean and Mr Jones point out that the EAT has extended this principle in relation to the deduction of Invalidity Benefit in cases of unfair dismissal; see Puglia v C. James & Sons [1996] ICR 301. They also point out that in unfair dismissal claims there is express statutory provision in relation to the payment of unemployment and supplementary benefit. They argue, however, that where there are no express statutory provisions relating to benefits, the common law principle expounded by Lord Bridge applies.
44 In our judgment, there is no error of law in the approach taken by the Tribunal, and in the absence of any statutory provision relating to the recoupment of income support, we see no reason why the respondent should have the benefit of what we think would be an element of double accounting. On a practical level, it seems to us artificial to separate out the benefit which the Respondent received for herself from that which she received for her children and in relation to her mortgage. Had she been in employment, she would, no doubt, have supported her children and paid her mortgage from her earnings. No doubt the money paid to her by way of benefit was used for these purposes. In these circumstances, it seems to us that there would be an element of double accounting were the Respondent not now required to give credit for the benefits relating to her children and her mortgage. In our judgment, therefore, the cross-appeal is without merit and will be dismissed.
The recommendations under section 65 of the Sex Discrimination Act 1975
45 We have already set out the terms of the recommendations made by the Tribunal. Mr Bean and Mr Jones attacked the second recommendation at (i)(b). They argued that the jurisdiction given by section 65(1) of the Sex Discrimination Act 1975 was not to make recommendations which were generally ameliorative: they must obviate or reduce the adverse effect on the complainant. They relied on the unreported case of Fasuyi v London Borough of Grenwich [EAT, 9 December 2000]. The adverse effect must be that of the acts of discrimination, not some “nebulous or general adversity”. They argued that since the Tribunal had reached the conclusion that the Respondent acted reasonably in refusing the offer of reinstatement, the suggested interviews and “invitations” to apologise could not obviate or reduce the adverse effects of the discrimination on the Respondent. The “adverse effects” in section 65(1) mean the effect on the Respondent’s employment, or possibly her prospects of employment. The measures proposed would have no effect on those, and the Tribunal did not suggest they would.
46 Whilst the apologies, they argued, might give the Respondent some satisfaction, Mr Bean and Mr Jones pointed to the observations of the EAT in Fasuyi that “an apology that is made only upon an order to apologise might reasonably be thought to lack the contrition which, in a spontaneous apology, might have caused an amelioration in the [Applicant’s] position.” They also pointed out that the Respondent had not made the individual Officers concerned parties to the proceedings. Accordingly, they had had no opportunity to make submissions to the Tribunal. Mr. Bean and Mr. Jones argued that the recommendation had not been sought either in evidence or in submissions on the Respondent’s behalf and whilst this was not a bar to the exercise of the jurisdiction, it made it inappropriate in the instant case.
47 For the Respondent, Mr Jeans and Miss Woodwark argued that the injury to the Respondent’s feelings was uncontrovertibly part of the “adverse effect of the discrimination to which the complaint related”. To know that the wrongdoers had at least been confronted with the Tribunal’s findings and the Appellant shaken from “institutional denial” could, they argued, plainly reduce injury to feeling, in particular the natural sense of injustice noted by the Tribunal in its reasons. Counsel argued that the Tribunal was well within its powers in recommending a framework in which the wrongdoers could face up to the Tribunal’s findings and offer an apology if they chose to do so.
48 The relevant parts of section 65 of the Sex Discrimination Act, 1975 are as follows:
“(1) Where an employment tribunal finds that a complaint presented to it under section 63 is well-founded the tribunal shall make such of the following as it considers just and equitable -
…
(c) a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any acts of discrimination to which the complaint relates.
…
(3) If without reasonable justification the respondent to a complaint fails to comply with a recommendation made by an employment tribunal under subsection (1)(c), then, if they think it just and equitable to do so –
(a) the tribunal may … increase the amount of compensation required to be paid to the complainant in respect of the complaint by an order made under section 1(b), or
(b) if an order under sub-section (1)(b) was not made, the tribunal may make such an order.”
49 Our conclusions on this part of the case are as follows:
(1) Section 65(1)(c) gives the Tribunal an extremely wide discretion, and we do not accept the submission that the recommendation made by the Tribunal was outside its jurisdiction under section 65(1) of the Act.
(2) We were told by Counsel that the recommendation contained in (i)(a) of the decision had been implemented and that there was no appeal against it. This, it will be recalled, provides for the Respondent to be provided with a written apology by the Appellant.
(3) In our judgment, the recommendation that Mr Brear, as Deputy Chief Constable, should interview the Officers identified in (i)(b) and discuss with them those parts of the Tribunal’s decision sent to the parties on 4 October 1999, and the Employment Appeal Tribunal judgment sent to the parties on 20 July 2000 which affect the individual Officers was appropriate. We think it good practice that any employer, faced with findings such as those made by the Employment Tribunal in the instant case should consider its behaviour and discuss the findings of the Tribunal with those concerned. The Tribunal had found “institutional denial”. That finding needed to be addressed, and in our judgment the knowledge that it was being addressed falls, on the facts of this case, within section 65(1)(c). We accept the submission made by Mr Jeans and Miss Woodwark that to know that the wrongdoers has at least been confronted with the findings could plainly reduce injury to feeling. Vindication of an Applicant by the Tribunal, they argued, may be hollow if the employer is not even invited to face up to the decision. We agree with that submission.
(4) Where, however, we part company from the Tribunal is in the final 12 words of the penultimate sentence and the final sentence of the recommendation at (I)(b). We propose, accordingly, to allow the appeal in relation to recommendation (i)(b) to the extent of deleting everything after the word “Officer” in the penultimate sentence thereby, of course, deleting the final sentence in its entirety. The recommendation will, accordingly, end with the words:
“Sent to the parties on 20 July 2000 which effect the individual Officer”.
(5) Our reasons for taking this course are as follows. The Respondent has received her apology – see recommendation (i)(a). We think there is force in the submission made by Mr Bean and Mr Jones that the Officers in question had not had any opportunity to make their position clear to the Tribunal. There is also, of course, no means of enforcing the recommendation against the Officers in question. Fulfilment of the recommendation could, accordingly, result in the Officers in question refusing to apologise, thereby having the opposite effect of obviating or reducing the adverse effect on the complainant of the act of discrimination. Even if apologise were forthcoming, the observations of the EAT in Fasuyi are in point. Any such apology would unlikely to be perceived as being sincere.
50 In these circumstances, we are of the opinion that the Tribunal erred in law in requiring Mr Brear to invite each of the Officers named to apologise in writing to the Applicant and in recommending that Mr Brear report in writing to the Applicant or her Solicitors as to the outcome of the interviews and whether or not the invitation to apologise was accepted in each case. As indicated, recommendation (i)(b) will be altered accordingly.
51 The appeal will accordingly be allowed to the following extent:
(1) Recommendation (i)(b) will be amended by deleting everything after the words “which affect the individual Officer” in the recommendation.
(2) The award made in (ii)(a) of “such sum as after deduction of tax at the [Respondent’s] marginal rate in the year or years of assessment shall leave in her hands the sum of £165,829” will be set aside and the question of the Respondent’s future loss of earnings remitted to a differently constituted Tribunal for reconsideration.
(3) The sum of £65,000 for injury to feeling awarded in (ii)(b) will be set aside and the figure of £30,000 substituted.
(4) The appeal against the award of £9,000 for personal injury will be dismissed and
(5) The award of interest in the sum of £18,015 will be set aside and such sum substituted as shall be found to be appropriate by the Tribunal to whom the matter is remitted.