An award of compensation totalling £8,000 made under the Race Relations Act 1976 to an employee against an employer for injury to feelings and aggravated damages that related to a single direct incident of racial discrimination was neither wrong in principle nor excessive in amount.
The Court of Appeal so held dismissing an appeal by the employer, British Telecommunications plc, from the Employment Appeal Tribunal on March 7, 2003 (Judge Prophet, Ms S. R. Corby and Mr R. N. Straker) upholding a decision of an employment tribunal to award the employee, Andrew Reid, £6,000 for injury to feelings and £2,000 by way of aggravated damages.
Mr Philip Thornton for the employer, the employee did not appear and was not represented.
LORD JUSTICE WARD said that the employee was a black man of Afro-Caribbean descent who had been employed by British Telecommunications since 1997. In January 2000 he was working shifts in St Albans with two others. It was not a happy team.
The employment tribunal had to examine four incidents. Its finding of actual discrimination was in respect of only one incident of unpleasant conduct: the transgressor, one of the team, after a heated argument saying to Mr Reid: “I will get someone to put you back in your cage.”
The tribunal found that the employer had not proved that it had taken such steps as were reasonably practicable to prevent the transgressor from doing the alleged acts and that it was therefore liable in respect of any complaint found proved.
No appeal was made against the finding of liability, the challenge being only against the separate award of damages for injury to feelings and aggravated damages.
The employment tribunal’s judgment was not as fully reasoned as it might have been: it could have been more felicitously expressed.
However, in Chief Constable of West Yorkshire Police v Vento (The Times December 27, 2002; [2003] ICR 318) the Court of Appeal pointed out that translating hurt feeling into hard currency was bound to be an artificial exercise.
In Alexander v Home Office ([1988] IVR 685) the Court of Appeal observed that it was open to a tribunal in a discrimination case to include an element of aggravated damages.
In Prison Service v Johnson ([1997] ICR 275) the Employment Appeal Tribunal, having considered Alexander’s case, said that aggravated damages ought to be available in direct discrimination cases where a complainant relied on malice or the employer’s manner of conduct as aggravating the injury to feelings.
For the employer it was submitted that the fact the transgressor had not been punished did not demonstrate that the employer had treated the incident as trivial.
There was no finding, Mr Thornton argued, of any high handed, malicious, insulting or oppressive behaviour, nor any finding that the conduct was intentional.
So far as the appeal against aggravated damages was concerned those submissions caused some anxiety. However, the conclusion had to be that the reasons were sufficiently discernible and entitled the tribunal to take account of the fact that the transgressor had not been punished, remained in post and, strikingly, had been promoted.
Those were factors which could not be said to be irrelevant and the tribunal did not err in having regard to them.
Lord Justice Latham agreed and Lord Justice Keene gave a concurring judgment.
The Times: October 2003
