United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS SARAH MOOR (of Counsel) Instructed by: Race Equality First The Friary Centre The Friary Cardiff
For the Respondent	MR JOHN BRYANT (of Counsel) Instructed by: Hawkins Russell Jones Solicitors 7/8 Portmill Lane Hitchin Hertfordshire SG5 1AS


 


HIS HONOUR JUDGE D SEROTA QC

Introduction

1. This is an appeal by Mr Yashin Essa against a decision of the Employment Tribunal at Cardiff chaired by Dr Rachel Davies that was promulgated on 30 March 2001. The decision relates to quantum only. The Employment Tribunal dealt with liability in an earlier decision promulgated after a 4-day hearing on 31 March 2000. On that occasion the Employment Tribunal (a) dismissed claims of constructive dismissal against both Laing Ltd and Roy Rogers trading as R&R Construction, (b) dismissed a claim of discrimination on the grounds of race against Roy Rogers but (c) found in favour of Mr Essa on his application, of discrimination on the grounds of race against Laing Ltd. Mr Essa was awarded compensation of £5000 for injury to his feelings together with the sum of £519.76 in respect of financial loss. Roy Rogers is no longer a party to the proceedings pursuant to the Order of the Registrar of 28 February 2002. There is no appeal by the Respondent, Laing Ltd, as to liability but Mr Essa appeals in relation to the question of quantum. The thrust of his appeal is that the Employment Tribunal applied the wrong test to determine whether he was entitled to be compensated for a psychological condition said to have been caused by the discrimination. There is also an appeal as to the adequacy of the award of £5000 in respect of the injury to his feelings. The matter was considered at a Preliminary Hearing by the EAT on 19 December 2001, presided over by His Honour Judge Levy QC and the matter was allowed to proceed to a full hearing.

Factual Background

2. We now refer to the factual background as found by the Employment Tribunal. Mr Essa is Welsh and black of Somali ethnicity. He was a successful amateur boxer who had represented Wales on a number of occasions. He is now a professional boxer. In order to maintain himself while an amateur boxer Mr Essa would work as a labourer and construction worker. On 25 June 1999 he obtained employment with Roy Rogers as part of the sub-contract labour force at the Millennium Stadium that was being constructed in Cardiff. Mr Essa was very proud to work on this site where he hoped one day he would box for Wales.
3. Almost immediately after commencing work on the site Mr Essa began to suffer petty acts of humiliation and insult. On 28 July 1999 one Mr Prichard, an employee of Laing abused Mr Essa. Mr Prichard was a foreman with an extremely abrasive style which may have contributed to his success in driving work forward quickly. However, on 28 July, in front of a gang of 15 men, he said in reference to Mr Essa "make sure that black cunt doesn't wander off". This caused immense distress to Mr Essa.
4. Mr Essa complained to Laing but he considered that his complaint was not taken seriously. Thereafter he was taunted by other employees. On 5 August 1999 he left the site without clocking off. He was reprimanded by a foreman but Mr Essa took offence and left the site.
5. On 6 August 1999 a disciplinary hearing took place and Mr Essa was given a final written warning. He had, however, left the site, did not attend and was not told of the outcome.
6. Mr Essa's case was that Mr Pritchard's abuse had so upset him that it affected his health. He was treated for depression and his boxing was affected. He suffered a serious sense of rejection as a Welshman; this sense of rejection was such that he became a professional boxer based in England. The Employment Tribunal found as follows:

3 "Evidence was given as to a dramatic personality change. It was said that prior to the incident Mr Essa has been a kind, cheerful, happy-go-lucky and hardworking individual, immaculate in appearance and careful of the company he kept. He did not drink, smoke or swear, he took a passionate interest in his boxing. After the incident of 28 July, it was said, he did not leave his flat for a month. He became morose, withdrawn, and careless in his dress. He mixed with undesirable company and smoked, drank and used bad language. He lost interest in his boxing and his Welsh identity was undermined. He became prejudiced against white people including his prospective mother-in-law, and flared up at harmless remarks conducting himself in a violent and aggressive manner. Such conduct was witnessed by a psychiatrist who reported for the Tribunal that she was frightened by it. He became lazy and would not get out of bed to look for work. By March 2000 he became fit enough to win the Welsh Bantam Weight Championship. In April 2000 a psychiatrist reported that he was fit again but still lacked confidence and would benefit from counselling. He deteriorated however after his benefit was stopped due to non-attendance for an appointment, and fell into debt thus exacerbating his depressive situation."

Decision of the Employment Tribunal

7. We have already briefly referred to the decision of the Employment Tribunal on liability. The Employment Tribunal found that although Mr Essa was employed by Roy Rogers there had been no constructive dismissal nor was there evidence that Roy Rogers had been guilty of discrimination on the grounds of race. However a finding of discrimination on the grounds of race was made against Laing as it was responsible for Mr Pritchard and was on the facts unable to rely upon the defence that it had taken such steps as were reasonably practicable to prevent Mr Pritchard acting in the abusive manner he did under section 32 (3) of the Race Relation Act 1976. The Employment Tribunal rejected the complaints by Mr Essa in respect of alleged less favourable treatment in respect of the handling of his complaint and also rejected a claim that Mr Essa had been subject to victimisation.
8. So far as quantum was concerned, the Employment Tribunal had this to say:

2 "In calculating special damages we bear in mind that the Respondents are only liable for such reasonably foreseeable loss as was directly caused by the discriminating act." [our underlining]

The Tribunal went on to find that the direct cause of Mr Essa's departure on 5 August was the incident of 28 July in that it rendered him so over-sensitive to a reasonable reprimand that he was unable to continue working on the site. The Employment Tribunal held that Laing may have reasonably foreseen that some distress and a premature departure might have resulted from the abuse from Mr Pritchard:

"But they could not have reasonably foreseen the extent of Mr Essa's reaction to it and his subsequent failure to look for other work."

9. The Employment Tribunal then set out the nature of the character change suffered by Mr Essa which we have already quoted. They went on to say:

4 "We have no doubt that Mr Essa has suffered hurt and humiliation as would any reasonable person in a similar situation. We bear in mind that the award for injury to feelings depends not so much on the seriousness of the discrimination as on the nature of Mr Essa's reaction to that discrimination. Mr Essa's reaction however, was extreme. It was so extreme as to have been irrational. In our view Mr Essa has not helped himself. His trainer, Mr Kitchen, gave him excellent advice when he told him to try to put the incident behind him. He did not do so. He stayed indoors and dwelt on the incident and allowed it to poison his mind to such an extent that he was unable to look for work or to take any other positive steps to get his future back on track. To make matters worse he took himself off medication prescribed by the doctor after only two weeks, and did not seriously seek counselling as suggested by the doctor until six months had gone by, thus allowing more time for the wound to fester."

10. In the circumstances the Employment Tribunal assessed compensation for injury to feelings at £5000. They noted that the abuse was "a one-off incident" and that there was not a prolonged, continuing act of racism. They also noted that the matter was dealt with quickly by Laing and that Mr Essa received an apology.

The Issues in the Appeal

11. The principle question that needs to be determined in this appeal is whether the victim of discrimination on the grounds of race can recover compensation for losses only if they are reasonably foreseeable, or whether it is sufficient that the victim proves a causal link between the act of discrimination and the loss. As appears later in this judgment there are apparently contradictory decisions in the Court of Appeal and there is relatively little authority as to questions of remoteness of damage so far as concerns statutory torts.
12. There is a further issue as to the adequacy of the compensation of £5000 awarded in respect of injury to feelings.

The Law

13. Section 56 of the Race Relation Act 1976 provides as follows:

56 (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 ordered by a county court or by a sheriff court to pay to the complainant if the complainant had fallen to be dealt with under section 57."

We note that the proceedings in the present case were brought in the Employment Tribunal pursuant to section 54.

14. Section 57 of the Act provides as follows:

57 (1) "A claim by any person ("the claimant") that another person ("the Respondent") –

(a) has committed an act of discrimination against the claimant…

(b) …may be made the subject of civil proceedings in like manner as any other claim in tort or (in Scotland) in reparation for breach of statutory duty…

(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."

15. Mr Bryant who appeared on behalf of the Respondent drew our attention to the dictum of Browne-Wilkinson J in Hurley v Mustoe (No. 2) [1983] ICR 422 to the effect that compensation under section 57 (1) (b) is to represent:

"the full measure of damages recoverable in tort for the statutory tort of unlawful discrimination."

16. We note that similar language to section 56 and 57 of the Race Relation Act 1976 appears in sections 65 and 66 of the Sex Discrimination Act 1975. It is for that reason that the decision of the Court of Appeal in Coleman v Skyrail Oceanic Ltd (t/a Goodmos Tours) [1981] IRLR 398 is of particular significance. In that case the Court of Appeal was concerned, inter alia, with an award of compensation for injury to feelings under the Sex Discrimination Act 1975. She had been awarded £1000 at first instance; the EAT suggested that a sum in the region of £250 would have been more appropriate. Mrs Coleman appealed to the Court of Appeal. Lawton LJ had this to say at paragraph 13:

"The jurisdiction of the Industrial Tribunals to make awards of compensation derives from ss 65 and 66 of the 1975 Act. A claim for compensation should be dealt with in like manner as a claim in tort (see s65 (1) (b) and s66 (1)). S66 (4) provides that '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'. Compensation is to be awarded for foreseeable damage arising directly from an unlawful act of discrimination. It follows that an Applicant can claim for any pecuniary loss properly attributable to an unlawful act of discrimination…" (our underlining)

Sir David Cairns agreed with Lawton LJ but Shaw LJ dissented on the basis that Mrs Coleman's claim was unmeritorious.

17. The other relevant authority in the Court of Appeal is Sheriff v Klyne Tugs (Lowestoft) [1999] ICR 1170. The issue before the Court of Appeal in that case was whether an employee who had sought compensation for discrimination on the grounds of race in an Employment Tribunal and had accepted a payment in full and final settlement of all claims he might have against the employer, was precluded from seeking compensation in the County Court for post-traumatic stress disorder. Mr Sheriff alleged the employer was negligent in permitting the master of one of his vessels to subject him to abusive and detrimental treatment. The claim was struck out as an abuse of process on the basis that the same claim had been litigated before in the Employment Tribunal and the Court of Appeal dismissed Mr Sheriff's appeal. In the course of his consideration Stuart-Smith LJ had this to say at page 1179 E-H:

21 "In my judgment both the Employment Tribunal under section 56 of the Act of 1976 and the county court under section 57 have jurisdiction to award damages for the tort of racial discrimination including damages for personal injury caused by the tort. The question, which may be a difficult one, is one of causation. It follows that care needs to be taken in any complaint to an Employment Tribunal under this head where the claim includes, or might include, injury to health as well as injury to feelings. A complainant and his advisers may well wish in those circumstances to heed the advice of the editors of Harvey…to obtain a medical report…

22 But is the present claim one to which paragraph 4 of the agreement applies? Mr Buchan submits that it is not, because the cause of action is different. The claim in the action is based upon the tort of negligence. The claimant will have to prove not only the conduct of the master, but that it was reasonably foreseeable to a reasonable employer that this might cause psychiatric injury. I merely comment in passing that this might in any event prove a difficult hurdle to surmount. One can reasonably appreciate that such harassment may cause injury to feelings; but psychiatric injury is a different matter. The advantage of the statutory tort, from the claimant's point of view, is that this requirement does not need to be established; all that needs to be established is the causal link." (our underlining)

18. Coleman v Skyrail was not cited in Sheriff v Klyne Tug. The dicta that we have quoted seemed to us to be obiter in both cases and are clearly contradictory in so far as concerns questions of remoteness and damages.
19. We were referred to a number of leading textbooks including the current editions of Clerk & Lindsell paragraph 7:13-14 and 7:133. We were also referred to McGregor, Salmond & Heuston and Street. It seems reasonably clear that in so far as the law of negligence is concerned, as opposed to breach of statutory duty, reasonable foreseeability defines the ambit of both duty and remoteness as a general rule. If an injury is not reasonably foreseeable, then there is no actionable loss if it is caused "negligently". There is little authority in relation to torts of deliberate wrong-doing such as assault as to whether damages can only be recovered if reasonably foreseeable as a result of the tort or whether damages are recoverable if the loss has been caused directly, even if unforeseeably, as a result of the tort.

Submissions

20. After we heard the parties' initial submissions we invited Counsel to provide further written submissions and as we considered there might be some further assistance to be found in textbooks that had not been cited. We were surprised by the relative dearth of authority on the point. I am bound to say that I have dealt with a number of personal injury cases that have involved allegations both of negligence and breach of statutory duty. I cannot recall ever having heard a submission that different rules apply as to remoteness of damage in negligence and breach of statutory duty in so far as it might affect quantum of loss in such cases.
21. Miss Moor for the Applicant submitted that the Employment Tribunal had followed the wrong test and that the EAT should follow the dictum of Stuart-Smith LJ in Sheriff v Klyne Tugs, and hold that the Employment Tribunal should have awarded compensation for injuries that had been suffered directly as a result of the discriminatory act, even if such loss might have been unforeseeable. She sought to derive some support from the decision of the European Court of Justice in Marshall v Southampton and South-West Hampshire Area Health Authority (No. 2) [1993] IRLR 445 in which ECJ stated at paragraph 26:

"Where financial compensation is the measure adopted in order to achieve the objective indicated above, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules."

22. We shall turn to submissions in relation to quantum and aggravated damages later. Miss Moore submitted that wrongful discrimination on the grounds of race was a statutory tort and that the general rule in cases of statutory torts was that the victim is protected against injury of a kind which the statute intended to protect him from; she drew attention to the current edition of Street at page 429 and to Salmond & Heuston at page 518:

"When the claim is for breach of a strict statutory duty. The cases show that in actions for (say) a failure to fence dangerous machinery securely, foresight of the consequences is irrelevant."

23. It is submitted, we believe correctly, that the liability imposed by section 57 (1) is one of strict liability. Miss Moor submitted:

"The tort is indeed one of strict liability, it does not matter how malicious or well-meaning, intentional or unwitting, reasonable or unreasonable as the act of discrimination. As long as it is established that the Applicant has been treated less favourably on the grounds of race, that is sufficient."

24. Mr Bryant for Laings submitted as follows.

(a) The Applicant must prove that his or her loss was caused by the unlawful act of discrimination;

(b) To recover compensation in respect of it, the Applicant must prove that the loss was of the kind the statutory provisions were intended to prevent;

(c) The kind of loss contemplated by the statute is that which reasonably foreseeably

results from the unlawful act;

(d) Once the Applicant proves he suffered the kind of loss contemplated by the statute, he may recover compensation in respect of its full extent, even if its full extent was not reasonably foreseeable.

25. It seems to us that propositions (a), (b) and (d) are not controversial although Mr Bryant at one time was minded to submit that psychological injury was not a kind of injury that the relevant statutory provision was intended to prevent, he accepted, as I think he must be bound to accept in the light of Sheriff v Klyne Tugs, that personal injury including psychological injury is a kind of damage which the relevant statutory provisions were intended to prevent.
26. Mr Bryant submitted that if psychological harm was not a reasonably foreseeable result of an act of discrimination there should be no award for injury to health as opposed to feelings. Mr Bryant concluded his submissions as follows:

"In summary, when one stands back and asks, what is the harm that the statute is intended to prevent? the answer is unlawful acts of discrimination (section 54). Those may range from a deliberate physical assault to unthinking teasing or to completely "innocent" acts, for instance, unintentional indirect discrimination. In the last case the statute allows for no award of damages: see section 57 (3). That indicates that compensation must "fit the crime". There is no compelling reason why damages for psychological damage, if not reasonably foreseeable should be recoverable."

27. He went on to submit that because the statute permits recovery for injury to feelings and because aggravated damages are also recoverable all loss that might be expected to flow from the tort are recoverable. Accordingly there would be no need to allow recovery for psychological damage so far as that was not a reasonably foreseeable consequence of the tort. In the present case, Mr Bryant submits that Mr Essa had over-reacted to the extent of being "irrational" and had not helped himself. On a fair reading of the decision the Employment Tribunal considered that what had caused the loss was Mr Essa's own fault even if it had been mistakenly put in terms of reasonably foreseeability. "The ET came to the right result, if for slightly the wrong reasons".

Conclusion

28. We do not consider that the Marshall case is of any great assistance because the passage we have quoted rather begs the question on issues of remoteness and leaves it to national rules to determine such questions.
29. As we have noted the two authorities in the Court of Appeal are contradictory. It does seem to us that the Court of Appeal in Coleman v Skyrail did not have in mind questions of remoteness and causation. Stuart-Smith LJ's dictum in Sheriff v Klyne Tugs, was also obiter and no authorities were cited to him. However it seems to us that he clearly had in mind the general principles applicable to remoteness of damages in claims relating to breach of statutory duty. In our opinion the statutory tort created by section 54 of the Race Relation Act 1976 is, as Miss Moor submitted, designed to protect persons from race discrimination and consequent injury, including personal injury such as psychiatric damage. If we, therefore, have to choose between determining whether parliament intended compensation to be recoverable only in cases of reasonably foreseeable harm as opposed to harm that was caused directly, we prefer to hold that it intended compensation to be payable in cases where the harm was caused directly. Section 54 is designed to protect against all kinds of discrimination on the grounds of race. Such discrimination can take many forms and although it is right to say that a "one-off" abusive comment might not foreseeably cause serious psychological injury, as is said to be the position in this case, a course of racially abusive conduct might well foreseeably cause psychological injury. We are of the opinion that psychological injury was a type of harm the statute was intended to protect against. Indeed in cases of discrimination on the grounds of race psychological harm is a far more likely consequence than any other form of physical injury. We are accordingly minded to follow the dictum of Stuart-Smith LJ in Sheriff v Klyne Tugs rather than that of Lawton LJ in Coleman v Skyrail. It follows, in our opinion, that the Employment Tribunal in this case fell into error.
30. In our opinion the case should be remitted to the Employment Tribunal to reconsider questions of compensation having regard to such findings as they might make and to what extent Mr Essa's psychological injury was a direct cause of the racial abuse he suffered on 28 July 1999. The Employment Tribunal will have to consider questions as to whether there was any intervening cause such as an unreasonable refusal or failure to seek and follow medical advice. It will also be necessary for them to consider questions that might be relevant in this regard to mitigation of damages. These are matters for the Employment Tribunal to determine, having regard to the evidence that they received and heard including evidence from Mr Essa's medical advisers.
31. We now turn to consider questions of the award of £5000 for injury to feelings. Miss Moor was minded to submit that this sum was inadequate and that there should be a separate award of aggravated damages. In our opinion, having regard to the Court of Appeal of Northern Ireland in McConnell v Police Authority for Northern Ireland [1997] IRLR 625 the proper practice is to make one award for compensation to include aggravated damages and it seems to us that the award of £5000 for the injury to feelings alone was within an appropriate bracket and we see no basis to interfere. The Employment Tribunal was entitled to have regard to the fact that although a serious insult, it was a "one-off" and was followed by an apology. We stress that this award was for injury to feelings alone and did not include any compensation for the subsequent psychological injury which Mr Essa claims so affected his life.