Gbaja-Biamila v DHL International (UK) LTD & Ors 2000 ICR, EAT
Alexander v Home Office [1988] ICR 685, EAT
ICTS v Tchoula [2000] IRLR 643, EAT
Virdi v Commissioner of the Metropolitan Police (2001), ET
In recognition of the damaging effect that discrimination can have on individuals, legislation provides that damages can be awarded for any injury to the applicant's feelings in Employment Tribunals. The cases dealing specifically with damages in discrimination show a wide range of variation in awards. This article considers the factors and principles which tribunals should apply in calculating the award, and gives some pointers for estimating the appropriate level of an award.
Whilst the term "Injury to feelings", is used in the Race, Sex and Disability Discrimination Acts, it is not defined. In practice it covers a wide range of suffering, from feelings of shock and upset to complete nervous breakdowns. The most fundamental point is that the award is subjective and the level of damages depend on how any particular individual had been affected. Although experience suggests that many applicants do not want to focus on their feelings, but on the wrong done by the employer, damages for discrimination are not punitive or deterrent, and an award should not be influenced by the Courts feelings of indignation at the way that the applicant has been treated by their employer.
Of course, the type of injury to feelings will vary. A stoical applicant may have a greater awareness of discrimination and react with anger and a determination to pursue the employer for a remedy, whilst an applicant who has placed faith in an employer's equal opportunities promises may be find their illusions shattered and their health severely affected. Both will have suffered an injury to their feelings, though the manifestations are different, and both should be compensated.
Advisors need to explore the wider effect that discrimination has had on the applicants life and work. A loss of confidence and sense of failure at work may lead to increased headaches, lack of concentration, associated sleep loss, tearfulness, depression, loss of appetite, a deliberate change in appearance, or a loss of interest in friends, or activities which have previously been enjoyed. Many applicants talk of feeling undermined, and even if they manage to cope at work report a loss of interest in their family life and activities outside work.
In considering how serious the injury to feelings is, the evidence of the applicant will obviously be central. However, courts are increasingly placing great emphasis on medical evidence, as an indication of, for example, the seriousness of sleep loss or headaches.
However, since applicants often also have a claim for damages for personal injury, which will specifically not include an award for shock, or hurt feelings unless it leads to a recognised clinical condition, courts can make an award for injury to feelings with no medical evidence, if they accept that the applicant has suffered the effects described. Where there is no medical backup, evidence from other family members, or friends, or work colleagues, who may have observed changes in behaviour and mood will be valuable.
The length of time that a person has suffered and will continue to suffer needs consideration, since this will affect the level of damages. To suffer an injury to feelings, a person needs to know that they are being discriminated against. Therefore, damages can start to run from the time that an applicant realises, or suspects they are being discriminated against.
Injury to feeling can include damage to reputation either in work or outside work, if this causes associated humiliation and distress. In Virdi v Commissioner of the Metropolitan Police, the police officer whose employers published allegations that he had sent himself racist hate mail in the national press, was compensated by the Employment Tribunal on the basis that he had suffered something akin to libel.
Describing the nature of the injury is the first stage, the second is determining the level of the award. In Alexander v Home Office [1988] IRLR 190, the Court of Appeal, outlined the principles a tribunal should bear in mind when considering how much to award. Firstly, courts must bear in mind that whilst awards must compensate for actual loss, they should not be so high as to appear as untaxed riches, but should be sufficient to reflect society's condemnation of discrimination. Awards for injury to feeling should bear some similarity to the levels of awards made in personal injury cases in general and that the everyday value of the award should be borne in mind. Lastly, it was stated that there is a need for public confidence in the level of awards for discrimination.
In practice, this translates to an inexact science, and awards for discrimination have stayed low, with most awards being below £10,000, unless, as in Mr. Virdi's case, there are very particular facts which take awards up to and above £20,000.
However, more recently two different courts of the EAT have expressed contrasting views of the approach that tribunals and appeal courts should take to quantification. What is common ground, is that the EAT should only interfere with a Tribunal award, if the decision is based on a wrong principle of law, the facts have been misapplied or if the tribunal have made a wholly erroneous estimate of the damages suffered.
In Tchoula, the EAT accepted that they had to look for other similar cases, with which to compare, and then decide whether the tribunal had made a wholly erroneous award. To do this, they looked at a range of cases, of differing factual backgrounds, different types of discrimination, and different levels of award. They then divided the cases into higher and lower level cases. The cases in the higher category attracted awards for injury to feeling of upwards of £20,000, whilst those in the lower category, attracted awards of below £10,000.
However, any comparative approach relies upon accurate available case analysis, and care must be taken. Firstly, reported cases which have been appealed will focus on the amount of the award, and the type of discrimination, rather than the individual's evidence of injury. Since comparison will only be useful if the same or similar level of injury has been experienced, care needs to be taken in selecting appropriate cases.
This leads to the second problem, which is that, unlike in personal injury cases, there is no accepted body of cases law on damages for discrimination. Noting these difficulties, in Gbaja-Biamilla Mr. Justice Lindsey commented, "Circumstances can vary dramatically from cases to case. In such an area consistency, however desirable in general may prove to be an elusive chimera and is likely to be preferable that an Employment Tribunal, relying on that experience and good sense, should pay more respect to doing justice to the case before it."
This brings us full circle, to the subjective nature of the awards. Tribunals have power to make significant awards for injury to feeling, and will do so where there are factors to justify them. In general however, awards remain low, with the difference between an award of £3,000 and £7,000 often depending on the Tribunal's discretion.