Compensatory feelings

Taylor v XLN Telecom

In discrimination claims, workers are entitled to be awarded compensation for injury to feelings or personal injury as long as they relate to the discriminatory act. In Taylor v XLN Telecom, the Employment Appeal Tribunal (EAT) said that claimants do not have to show that they had actual “knowledge” of the act of discrimination in order to receive compensation.

Basic facts

Mr Taylor started work for XLN Telecom in October 2006. He was promoted a year later on a three month probationary period, although this was subsequently extended because of issues about his performance.

In March 2008 Mr Taylor, who is black, lodged a grievance. He did not make any allegations of race discrimination at that point, but at the grievance hearing, he complained that one of his managers had been racially offensive. Following a probation review meeting on 19 May, he was suspended and then dismissed by letter on 27 May, ostensibly for poor performance.

Mr Taylor lodged claims of unfair dismissal and unlawful victimisation on the ground of his race.

Tribunal decision

The tribunal upheld Mr Taylor’s claim finding that his dismissal was both unfair and an act of victimisation on grounds of race.

The tribunal awarded him compensation of just over £12,000 but said it could not make any award for injury to feelings, personal injury or aggravated damages because it was bound by the decision of the Court of Appeal in Coleman v Skyrail Oceanic Limited. This said that "Any injury to feelings must result from the knowledge that it was an act of ... discrimination which brought about a dismissal."

The tribunal said that it felt it was impossible to make any award for injury to his feelings “for the simple reason” that he had failed to show that the “act of unlawful racial victimisation found by the Tribunal played any part in contributing to any distress, anxiety, depression or hurt feelings which his dismissal caused him.”

EAT decision

The EAT noted that Mr Taylor was to be compensated for the dismissal and that under the ordinary rules of tort (which apply to discrimination cases) he would be compensated for the wrongful act (the dismissal) irrespective of his knowledge.

The EAT said that the tribunal had misunderstood the Court of Appeal in Skyrail which concerned an award for injury to feelings only. In this case, however, Mr Taylor claimed to have suffered a psychiatric illness for depression and as such Skyrail was not relevant to his claim for personal injury. Furthermore, Skyrail was not authority for precluding an award for injury to feelings when a claimant did not know the motivation of the discriminator.

It took the view that it would be surprising if a claimant could only recover compensation for injury to feelings “if and to the extent that he could prove that he knew of the particular factor that rendered the act complained of unlawful”. Apart from anything else, the EAT said that it would not make sense for different rules to apply to compensation for injury to feelings as opposed to personal injury, particularly as they often overlap.

Mr Taylor was, therefore, entitled to recover damages for any psychiatric injury he had suffered or any injury to his feelings, irrespective of what he knew about the motivation behind his employer’s decision to dismiss him.

The EAT remitted the case to the tribunal to decide how much compensation he should be awarded.