At the Tribunal | |
On 27 February 2003 | |
Before
THE HONOURABLE MR JUSTICE RIMER
MR D BLEIMAN
MR D CHADWICK
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR PETER WARD (of Counsel) Instructed By: Messrs Levenes Solicitors Ashley House 235-239 High Road Wood Green London N22 8HF |
For the Respondent | MS CATHERINE RAYNER (of Counsel) Instructed By: Lambeth Law Centre Race Discrimination Unit 14 Bowden Street Kennington London SE11 4DS |
THE HONOURABLE MR JUSTICE RIMER:
A. The first appeal
1. During 1999 Mr Binns "had commented that a volunteer of Chinese origin had not completed his training session and Mr Binns had thought that the reason he had not attended was "something to do with his culture."
2. In June or July 2000, Mr Binns had found humorous a letter written by an SWVS client to an SWVS volunteer, Jennifer North, whom the client had addressed as "Jennifer North Esquire."
3. On an unidentified date Ms McManus, another SWVS volunteer, had said that a client of SWVS did not leave a domestic violent situation "because she was an Arab."
4. In about June or July 2000 there had been a conversation between Ms McManus and Mr Binns about the use of inappropriate language, and that the former had said that her cousin had visited America some time previously and her use of the words "nigger brown" had been questioned there.
5. In August 2000, Mr Binns apparently refused to send a letter helping a black client with a housing problem. Ms Keyani's concern was that such letters had been written in other cases.
"2. Discrimination by way of victimisation
(1) A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –
(a) brought proceedings against the discriminator or any other person under this Act; or
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or
(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith."
"67. … However, the Tribunal concluded that her complaints to [the Scheme] about her colleagues' actions fell within section 2(1)(c) and (d). In coming to this conclusion, the Tribunal acknowledged that some of the events which were the subject of the complaints made by [Ms Keyani] had taken place some time before and had been raised with Ms Lewis on an informal basis. We accepted, however, that [Ms Keyani] was using these matters to demonstrate her concerns about the more recent matters. We concluded that the particular reference to the phrase 'nigger brown' in August 2000 was significantly of concern to [Ms Keyani] and offensive.
68. We concluded that [Ms Keyani] had made her complaints in good faith and was genuinely concerned about these matters and the way in which they demonstrated a possible attitude or approach by the volunteers and staff, and that this might in some way impinge upon their dealings with [the Scheme's] clients. …
77. … The Tribunal concluded that the complaints of racial and cultural stereotyping were sincere. …".
"4. Discrimination against applicants and employees
…
(2) It is unlawful for a person, in the case of a persons employed by him at an establishment in Great Britain, to discriminate against that employee –
…
(c) by dismissing him, or subjecting him to any other detriment."
"(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services –
(a) by refusing or deliberately omitting to provide him with any of them; or
(b) by refusing or deliberately omitting to provide him with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person's case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section."
B. The second appeal
"(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that-
…
(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or
(e) the interests of justice require such a review."
"(5) An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success."
"It seems to us that there is material for a tribunal to investigate to decide whether or not the matter should be reheard or whatever other order should be made. It was not, in our judgment, a case which was suitable to be dealt with by a chairman alone acting under [the then equivalent of rule 13(5)]. It was a matter where the application should have been heard by the tribunal who could then have taken evidence and have decided whether or not they should alter their decision."
C. The third appeal
"32. … we concluded that the appropriate award would be £7,500. We concluded that it was appropriate to include in that award an amount of aggravated damages, having regard to the behaviour of [the Scheme] which we concluded had aggravated the damage already caused to [Ms Keyani]. [The Scheme], and in particular Mr Segen and Mr Segal to some extent, had acted high-handedly. [The Scheme] had failed to investigate [Ms Keyani's] complaints properly, had shown insensitivity and recklessness with regard to alleged complaints about [Ms Keyani], had failed to apologise to her and had dismissed her on spurious grounds. We concluded that such behaviour would attract an award of aggravated damages."
"19. It follows from these principles that an award of aggravated damages should not be an extra sum over and above the sum which the tribunal of fact considers appropriate compensation for the injury to the claimant's feelings. Any element of aggravation ought to be taken into account in reckoning the extent of the injury to his feelings, for it is part of the cause of that injury. It should certainly not be treated as an extra award which reflects a degree of punishment of the respondent for his behaviour. If Smith J intended to express approval of any different approach in Armitage, Marsden and HM Prison Service v. Johnson [1997] IRLR 162, where separate awards were made for injury to feelings and for aggravated damages, I should not find it possible to agree with that decision.
20. It is apparent from the concluding part of paragraph 5 of the tribunal's decision on remedies that it has fallen into error in this respect. It awarded £10,000 'for injury to feelings' and then added a further separate sum of £2,500 'by way of aggravated damages'….".
"65. Guidance
Employment tribunals and those who practise in them might find it helpful if this court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury.
(i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.
(ii) 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.
(iii) 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 feelings."
"5. We invited the parties' views on these options. Ms Rayner took instructions from [Ms Keyani] during a brief adjournment. [Ms Keyani] decided that she wished to pursue matters today and would withdraw the aspect of her claim relating purely to personal injury. It was therefore agreed that the Tribunal would proceed on that basis and take no further account of the medical report."
"51. Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury. In these circumstances an appellate body is not entitled to interfere with the assessment of the employment tribunal simply because it would have awarded more or less than the tribunal has done. It has to be established that the tribunal has acted on a wrong principle of law or has misapprehended the facts or made a wholly erroneous estimate of the loss suffered. Striking the right balance between awarding too much and too little is obviously not easy."