United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NIGEL GRUNDY (Of Counsel) Instructed by: Messrs Eversheds Solicitors Eversheds House 70 Great Bridgewater Street Manchester M1 5ES
For the Respondent	MS FLO KRAUSE (Of Counsel) Instructed by: Messrs Waldron & Schofield Solicitors 25 York Street Heywood Lancs OL10 4NN


 


JUDGE D M LEVY QC

1. The Appellant in this appeal is Quicks Group PLC ('the Appellant'). The Appellant appeals from a quantum award made by a Tribunal sitting in Manchester following a complaint by Mr Khan, the Respondent to the Appeal ('the Respondent'), of racial discrimination. At the Preliminary Hearing of this Appeal on 26 March 2001 the matters raised in the skeleton argument were held to be arguable by a Tribunal headed by Judge Clark. Mr Grundy appears for the Appellant as he did below and Counsel for the Respondent is Miss Krause also as below.
2. The hearing of Mr Khan's complaint took place on 9 March 2000 when the Tribunal though not allowing several of his complaints found that there had been some quite dreadful behaviour by a Mr Craven, an employee of the Appellant, and adjourned the matter for the remedy hearing. The remedy hearing was held on 11 September when the Tribunal awarded the Respondent a sum of £45,240. They divided that up into 4 categories, (1) injury to feelings for which £17,000 was awarded, (2) personal injury for which £20,000 was awarded (3) aggravated damages for which £5,000 was awarded (4) liquidated damages for which £3,240 was awarded.
3. In his skeleton argument and in his oral submissions to us, Mr Grundy has challenged the appropriateness of each of those figures. We have had an interesting day when we have been taken through some of the recent cases where these compensation awards have been reviewed in this Tribunal. We have also been taken to the JSB Guidelines which were before the Employment Tribunal and to a certain number of decisions of the CICB or the CICAP which were not referred to below and which in our judgement are not greatly of help. The JSB Guidelines with which they do not readily match the awards made in Employment Tribunal cases.
4. We would have considered reserving this judgment but as we have been told that the Respondent has not received a penny of the award made below, albeit that interest is running, and as we have reached the firm conclusion as to what should happen, we felt that it was in the interest of the parties if the judgment should be given at this time on this day.
5. Among the authorities to which we have been referred were Tchoula v ICTS UK Ltd [2000] IRLR 643. The decision in that case was promulgated after the decision which is the subject of this appeal. There a panel headed by Judge Clark usefully reviewed the different categories in which awards could be made. Having referred to the well known text book on personal injuries Kemp & Kemp, Judge Clark said:

"Awards in the field of appeal discrimination have not reached that level (referring to formulation). It is thus not yet possible for Tribunals to turn to similar guidelines. Quantification in this field remains an even less precise exercise in the personal injury field. Nevertheless we have been referred (he refers to Counsel) to a number of cases both of EAT and Employment Tribunal level which has allowed us to group those category cases into broadly 2 categories (the high and low categories)."

In the higher category a number of cases are referred to and Judge Clark and his colleagues say, after looking at the figures:

We also draw a parallel between type of personal injury cases attracting a similar award to the figure of £27,000 in this case and a higher-category discrimination cases. The question is whether this case, on its own facts, falls into the higher category, in which case we shall not interfere, or the lower category, in which event we are satisfied that the overall award was manifestly excessive and must be set aside."

Later he said:

"We have no hesitation in finding it does fall within the lower category and as such was wrong in principle.

It may be that there has to be a higher, lower and an intermediate category and that actual figures on a case may not be of so much assistance but that was the first case we were referred to. We were also referred to the decision in HM Prison Service v Salmon [2001] IRLR 425, a decision of this Tribunal and a Panel headed by Mr Recorder Underhill QC where a Tribunal compensation of £76,344.88 was held to be appropriate.

6. It is the reasoning in Tchoula to which we have been particularly referred. On the injury to feelings in paragraph 22 of the HM Prison Service v Salmon decision, the Tribunal considered the judgment of the Employment Tribunal. With reference to the position on aggravated damages, at paragraph 23 in HM Prison Service v Salmon reference was made to Alexandra v The Home Office [1988] IRLR 190 where the Tribunal said that was a convenient starting point as to when aggravated damages could be awarded. Paragraph 23 reads:

"It is convenient to start the question of aggravated damages. It has been clear since the decision of the Court of Appeal in Alexander v The Home Office [1988] IRLR 190 that it is open to a Tribunal in a discrimination case to include in its 'compensatory award'

'… an element of aggravated damages where, for example, the defendants may have behaved in a high handed, malicious, insulting or oppressive manner in committing the act of discrimination.'

- see per May LJ at p. 193. However, it is also clear that aggravated damages are awarded only on the basis, and to the extent, that the aggravating features have increased the impact of discriminatory act or conduct on the applicant and thus the injury to his or her feelings: in other words, they form part of the compensatory award and do not constitute a separate, punitive, award. If this not already sufficiently clear from Alexander, it was explicitly decided by the Northern Ireland Court of Appeal in McConnell v Police Authority for Northern Ireland [1997] IRLR 625 (see paragraph 19); and McConnell was followed by this Tribunal in Tchoula v ICTS (UK) Ltd [2000] IRLR 643 (see p.649)."

7. We think that this case was also decided after the matter was before the Employment Tribunal. What has been clear from the 3 cases so far cited is that if there is an element of double counting between the headings of injury to feeling and aggravated damages that is something, unless it is very very little, to which this Tribunal should have regard to. We were also referred to Gbaja-Biamila v DH International (UK) Limited and Others [2000] ICR 730. There the Tribunal's decision was by a panel headed by the President. It was held that although an order by an Employment Tribunal for payment of money in respect of racial discrimination could in some cases include an element of aggravated damages, there was no evidence before the Tribunal to suggest that the Applicant's sense of injury had been justifiably heightened by, for example, any high handed, malicious, insulting or oppressive manner by the employers in the course of committing the acts of discrimination. Further that the Tribunal had not erred in failing to include their element of aggravated damage in its award. The third holding was that an appeal court can only correct the quantification of compensation by an Employment Tribunal where a wrong principle of assessment had been adopted or where the Tribunal had arrived at a figure to which no Tribunal properly directing itself could have arrived. Although consistency in awards for injury to feelings likely desirable was likely to be preferable that an Employment Tribunal relying on its experience and good sense should pay more regard to doing justice to the case before it. Those are words which we have taken into account when we came to our decision here.
8. It is quite clear to us that the Respondent had received quite terrible treatment from an employee of the Respondent for a period of some 5 months. It might be said that he was only at work for 60 days of that 5 months but the racial discriminatory behaviour took place before the period of sickness and after it. In our judgment the whole of the period has to be taken into account.
9. In the decision on quantum, on the question of injury to feelings the Tribunal regarded this as a very bad case of injury of feelings. The Tribunal concluded that the appropriate compensation for injury to the Applicant's feelings should be the sum of £17,000. On the question of aggravated damages the Tribunal said this:

"The Tribunal have only to look at the behaviour of Mr Craven and the remarks they have made about that behaviour in their earlier decision to realise that this is a case which should attract aggravated damages. The Tribunal are also conscious of the way in which the Applicant's complaints were treated by the respondents with an apparent lack of interest. Mr Hassell did little apart from give the applicant his personal telephone number but even when telephoned by the applicant appeared to take no action. In the circumstances and bearing in mind the applicant's feelings of helplessness the Tribunal considered that aggravated damages should be awarded in the sum of £5,000."

10. Those 2 figures put together are £22,000. In our judgment there has been an element of double counting in those sums. We have been asked if we consider the decision was wrong to substitute our own figure to make a total award of injury to feelings and aggravated damages. We think justice to the case is done if we reduce the total awarded from £22,000 to a total of £17,000.
11. As to the personal injury claim, Mr Grundy has submitted to us that the award should fit into the JSB Guidelines into a bracket which was moderate, namely £3,000 to £3,500 rather than moderately severe £9,500 to £27,500. We have considered the commentary in the guidelines and the award made by the Tribunal in the light of that commentary.
12. We have concluded that the Tribunal was correct to find that the Respondent fitted into the higher of the two categories and that the figure of £20,000 which was awarded to the Respondent is not one which we could or should interfere.
13. As to the modest liquidated damages claim of £3,240, in our judgment this was a perfectly proper figure for the Tribunal to reach on the facts found.
14. In the event then, this appeal succeeds to the extent that we reduce the total award from £45,240 to the sum of £40,240 on which interest will be awarded. We hope that the sum will be paid to the Respondent very shortly.