In another decision about compensation for victims of racial abuse - British Telecommunications Plc v Reid (2004, IRLR 327) - the Court of Appeal awarded aggravated damages to the victim because of the high-handed way in which management handled the case.
What was the history to the case?
Following a promotion, Mr Reid, who was of Afro-Caribbean descent, transferred to a division at St Albans. Unfortunately, he did not get on with his new colleagues - Mr Edwards and Mr Scott.
After a number of disputes, there was a heated argument in November 2001 about personal use of a phone by Mr Reid. This culminated with Mr Edwards adopting a threatening manner, prodding him and saying: 'I will get someone to put you back in your cage'.
Mr Reid left work in distress, and on the following day, Mr Scott reported that he had not returned to work. He was disci-plined for his absence, and he, in turn, brought an internal grievance against Mr Edwards for racial harassment.
Following an investigation, the disciplinary case was closed but the grievance was not upheld. Mr Reid appealed internally against the decision and eventually went off with stress. Shortly after he returned to work, he was transferred to another location where he was not likely to have contact with Mr Edwards.
When the review of his grievance was finally completed in February 2002 (14 months later), his employer concluded that he had not been subjected to racial harassment. Prior to this decision, however, Mr Edwards and Mr Scott were both promoted to new posts which made them senior to Mr Reid.
What did the tribunals decide?
An employment tribunal found that Mr Reid had been discriminated against on grounds of race as a result of the remark made by Mr Edwards. The tribunal awarded £6,000 for injury to feelings because he 'had to suffer the indignity of a disciplinary investigation, which was totally unjustified' and the length of time he had to wait for his grievance to be finally resolved.
The tribunal awarded a further £2,000 for aggravated damages because Mr Edwards had not been punished, and had been promoted to a higher grade.
The employment appeal tribunal (EAT) upheld both awards against BT, which then appealed to the Court of Appeal against the award for injury to feelings and aggravated damages.
Was management to blame?
Contrary to the argument put forward by BT, the Court of Appeal said the tribunal was right to take a number of factors into account when deciding on an award for injury to feelings. In this case, the disciplinary investigation; the transfer to another location; and the inordinate wait for Mr ReidÕs grievance to be dealt with.
Nor was the tribunal wrong to award aggravated damages. It was entitled to take account of the fact that Mr Edwards was not punished, remained in post and was then promoted, even though the charges against him had not been decided.
Although the Court said there is nothing to stop an employer from promoting an employee while disciplinary proceedings are ongoing, it was relevant in this case because it demonstrated the high-handedness of the employer.
Lord Justice Keene said: 'Where an investigation is one into a complaint by an employee about a serious act of racial discrimi-nation alleged by him against a fellow employee, it is open to an employment tribunal to regard the promotion of that fellow employee while the investigation is still proceeding as being a high-handed action and one which is insulting to the complainant'.
The other lesson for managers is that grievances relating to harassment and discrimination should be resolved a lot quicker than the 14 months taken by BT.