United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S CRAMSIE (of Counsel) Instructed By: Messrs Davenport Lyons Solicitors 1 Old Burlington Street London W1S 3NL
For the Respondent	MISS M TETHER (of Counsel) Instructed By: UNISON Employment Rights Unit 1 Mabledon Place London WC1H 9AJ


 


THE HONOURABLE MR JUSTICE ELIAS:

1. The London Borough of Hackney, the appellant in this case, was held liable in the Employment Tribunal for discriminating against Miss Adams, the respondent, because of her trade union activities. They had withdrawn an offer of promotion which had been made to her because of such activities.

The factual background

2. Ms. Adams was employed by Hackney as an Administration Support Manager in their external catering department. This operated under the name of "Choice". In 2000 Choice underwent a restructuring exercise and the Miss Adams was elected to be a Unison Shop Steward to represent the interests of the workforce during negotiations with management about that restructuring. The Employment Tribunal found that the respondent fulfilled her role well and drove a hard bargain on behalf of her colleagues. On 10 May 2000, the respondent was interviewed for the post of office manager to the Social Services Department's head of its Inspection Unit, Shirley Gounder. This would have represented a career advance for the respondent. The Tribunal found that she was "proved by far to be the preferred candidate". Indeed, Miss Gounder was so enthusiastic about appointing her that she informed Ms Adams at once that she was to be promoted.
3. The respondent was naturally delighted at this news and she organised a party to celebrate her success.
4. To her dismay, in June 2000, Hackney withdrew this offer. It sought to justify its change of heart on the grounds that the respondent lacked flexibility, was inexperienced in certain fields, and had taken 10 days sickness absence during the pervious year. However, the Tribunal found that none of these reasons was convincing. They concluded that:

"we therefore find that the applicants trade union activities … was the reason why Shirley Gounder changed her mind about the applicant's appointment and we make a declaration accordingly."

5. The Employment Tribunal held that an award of £5000 was appropriate compensation for the injury to feelings, which the respondent had suffered. Their reasons for so concluding are set out in certain paragraphs towards the end of their decision. They are as follows:

"With regard to compensation for injury to feelings, we are mindful of the comments of His Honour Judge Peter Clark in ICTS (UK) Ltd v Tchoula [2000] IRLR 643 at page 647 where he states:

"Awards for injury to feelings are compensatory, not punitive. Awards should not be so low as to diminish the respect for the policy [of anti-discrimination] nor so high as to be perceived as a way to untaxed riches. They should have a broad general similarity to the range of awards in personal injury cases. Employment tribunals should remind themselves of the value in everyday life of the sum they have in mind. Awards should command public respect."

Counsel for the respondent has drawn our attention to the case of Cleveland Ambulance NHS Trust v Blane, when the Employment Appeal Tribunal upheld an award of £1,000 compensation for injury to feelings when an employee was not put on a short-list for a job due to his union activities.

The representative for the applicant has said that this case is a great deal more serious. The applicant has been offered the job, had the offer withdrawn and then suffered the humiliation of having to tell her work colleagues, had to cancel her leaving party and suffered a slur upon her professional reputation which she felt the given reasons for the withdrawal of the offer implied. We are in agreement that the applicant has suffered real injury to her feelings but, as cases go, we do not consider it to be an extreme case and we therefore find that a compensatory award for injury to feelings of £5,000 is appropriate."

6. Hackney now appeals not against the substantive finding of discrimination, but against the amount of the award for compensation for injury to feelings. In formulating our judgment in this appeal, we have had the advantage, which the employment tribunal did not have, of considering a decision of the Court of Appeal in the case of Vento v The Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 in which Mummery LJ gave the judgment of the Court. That case was reported after we had heard oral argument in this case, and we have given the parties an opportunity to make representations about it in writing, which they have done.

The grounds of appeal

7. There are four distinct grounds of appeal which were advanced before this Tribunal. First, Mr. Cransie submits that the tribunal failed to give proper reasons for fixing the level of compensation of £5000. Second, it is said that the tribunal ought to have made explicit comparison with the appropriate range of awards in personal injury cases. Third, it was contended that the tribunal erred in apparently treating the range of awards for damages for injured feelings in this case as being in the same range as those that would be awarded in cases of sex and or race discrimination. It is fair to say, however, that at the hearing itself Mr. Cransie, for the appellant, did not pursue this matter with much enthusiasm. Finally it is said that the award was in all the circumstances excessive. We will take them in turn.

Inadequate reasons.

8. We are fully satisfied that the reasons given for the decision, to which we have made reference, are perfectly adequate. The tribunal identified certain features which, in their view, justified the particular award of compensation made. As the Court of Appeal pointed out in the Vento case (para 51), "it is impossible to justify or explain a particular sum [for compensation for injured feelings] with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury."

Personal injury comparisons.

9. Again, although the tribunal made no express reference to any specific award in personal injury cases, the reference to the Tchoula case in paragraph 39.3 of their decision indicates that they had well in mind that their award should have " a broad general similarity" to the range of awards in such cases. In our view there is no need for a tribunal expressly to seek to locate where it would place the facts of the case before it in the framework of the awards given for injuries in personal injury cases. The Court in Vento approved certain observations of Smith J in HM Prison Service v Johnson [1997] ICR 275 when she said:

"Awards should bear some general broad similarity to the range of awards in personal injury cases. We do not think that this is done by reference to any particular type of personal injury award, rather to the whole range of such awards."

Compensation depends on the ground of discrimination.

10. As to the third ground, in our view, there are no grounds for asserting that discrimination on trade union grounds will justify lower awards of compensation to other forms of discrimination, such as race or sex discrimination. In each case it is necessary to establish the loss by focussing on the particular injury suffered. If the injury in two cases is the same, it would not be just to award different levels of compensation simply because the source of the injury was different forms of discrimination. Ms Tether referred us in this context to certain observations of Sir Robert Carswell giving judgment in the Northern Court of Appeal in McConnell v Police Authority of Northern Ireland [1997] IRLR 625. He held that the employment tribunal had been wrong to hold that the award of compensation for injury to feelings in cases of political or religious discrimination should be greater than the awards made for other forms of discrimination in the following terms:

"In plain language, the tribunal is there saying that the feelings of persons who are the subject of religious or political discrimination in Northern Ireland merit higher compensation than those of persons subject to the same discrimination in Great Britain on grounds of sex or race. I am unable to accept that approach. Discrimination is equally pernicious, whether it is on religious grounds, sexual grounds, or racial grounds, and those who suffer from it on any of these grounds must feel equally distressed and hurt. I can discern no basis for saying that the distress and hurt caused by it varies with the type of discrimination rather than with the treatment of the victim."

11. That is not to say, however, that it will in all cases be just as easy to establish injury to feelings in relation to one form of discrimination as another. We doubt whether that can be right. Sometimes such injury will be the almost inevitable concomitant of the discrimination having occurred. For example, it can readily be assumed where someone has suffered an act of race or sex discrimination that will by its very nature have caused injury to feelings; it is demeaning to the individual and offensive to his or her dignity to be so treated. A tribunal will readily infer some injury to feelings from the simple fact of the discrimination having occurred. Such injury may of course be compounded by the particular manner in which the discriminatory conduct itself is made manifest. For example, harassment over a lengthy period will plainly result in more considerable distress than a single act of discrimination and should be compensated for accordingly. There will, however, have to be evidence of the nature of the discriminatory conduct.
12. By contrast, other forms of discrimination may leave the victim relatively, if not wholly, unscathed from any real distress. For example, it is unlawful to discriminate against someone on the grounds that he or she is a non-unionist. It seems to us that it is far from self evident that, for example, someone refused employment on those grounds will necessarily suffer any injury to feelings at all. The status of not being a trade union member is not likely, at least in most cases, to be an essential part of an individual's make up, or to be a characteristic which is central to a person's sense of self respect and self esteem. Making good the financial loss actually suffered may in such a case be adequate compensation. Even if there is any injury to feelings, the distress is likely to be less severe than with forms of discrimination, which engage the core of a person's being. Of course, that is not to say that there may not be particular cases where such injury cannot be established, such as a non-unionist who for that reason suffers harassment in a trade union shop. But it ought not readily to be assumed that injury to feelings inevitably flows from each and every unlawful act of discrimination. In each case it is a question of considering the facts carefully to determine whether the loss has been sustained. Some persons discriminated on trade union grounds may feel deeply hurt by that affront, particularly where union membership is an important feature of their lives; other more robust characters may consider it a matter of little consequence and suffer little, if any, distress. Since the aim is to compensate and not to punish, the compensation to be awarded ought not to be the same in each case.

Compensation is excessive.

13. This leaves the final and really the only significant point in this appeal, which is whether the award was excessive in all the circumstances. In Vento the Court of Appeal gave guidance as to the appropriate level of awards. The Court identified three broad bands of compensation as follows:

"The top band should normally be between £15,000 and £25,000. Sums in his range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex of race…Only in the most exceptional case should an award of compensation for injury to feeling exceed £25,000.

The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.

Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feeling."

The employment tribunal in this case did not, of course, have the benefit of this guidance. We bear in mind, as Ms Tether reminds us, that it is not for this Tribunal to substitute its view of the appropriate award for that of the employment tribunal. We must be satisfied that there is an error of law, such as the tribunal acting on a wrong principle of law, or misapprehending the facts, or making a wholly erroneous assessment: see Vento para.51.

14. In the light of the guidance given in that case we have to decide whether the sum awarded in this case is larger than is appropriate for the nature of the injury sustained. We fully recognise that the withdrawal of this offer of employment would at the time have caused real distress, and no doubt some humiliation. There was also a slur involved upon her professional reputation. But that has been in a large part mitigated now by the fact that the tribunal recounts that in October 2000, a few months after the initial unlawful act, Ms Adams took up a temporary post with Hackney at a grade which is in fact two grades above the position of the job offer which was withdrawn. That post was extended until September 2001. We have not been told whether it was ultimately given on the permanent basis that she was hoping. Furthermore, we recognise that the incident was a single act and not a pattern of conduct or anything of that nature.
15. Although we think that the compensation was on the high side, we are not prepared to conclude that it was so clearly erroneous as to justify our intervention. We consider that it falls just the right side of the line where it would be improper for us to interfere. Accordingly the appeal fails.