Orlando v Didcot Power Station Sports & Social Club [1995] UKEAT 95_95_0311
[1]BAILII case number: [1995] UKEAT 95_95_0311 Appeal No. EAT/95/95 EMPOLYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 11th October 1995 Judgment delivered on 3rd November 1995 Before THE HONOURABLE MR JUSTICE MORISON MR P DAWSON OBE MISS C HOLROYD MRS A M ORLANDO APPELLANT DIDCOT POWER STATION SPORTS & SOCIAL CLUB RESPONDENTS Transcript of Proceedings JUDGMENT Revised APPEARANCES For the Appellant MS I OMAMBALA (of Counsel) Equal Opportunities Commission Overseas House Quay Street Manchester M3 3HN For the Respondents MISS JOANNE HEAL (of Counsel) Messrs Cole & Cole Solicitors Buxton Court 3 West Way Oxford OX2 0SZ MR JUSTICE MORISON : Mrs Orlando was employed by the Didcot Power Station Sports and Social Club "the Club" as a part-time barmaid from 1980 until 19 May 1994, when she was dismissed. The Club admitted that her dismissal was unfair. At a hearing to determine remedy, Mrs Orlando informed the Industrial Tribunal that she wanted compensation for injury to her feelings. Having been told that such was not a permissible head of compensation under the 1978 Act, she was given leave to amend her complaint to make a claim under the Sex Discrimination legislation, it being her case that she was dismissed because she was pregnant (she gave birth to a daughter on 8 August 1994). Having had a relatively short time in which to consider their position, the Club indicated that they were prepared to admit, also, that Mrs Orlando had been discriminated against by them on the grounds of her sex. Accordingly, the Tribunal were entitled to consider the question of compensation for injury to her feelings. Under this head, she was awarded £750; to which was added a basic award of £752.90 and a compensatory award (in total) of £637. Although Mrs Orlando appealed against both the award for injury to feelings and the compensatory award, the argument before us was confined to the correctness of the award for injury to feelings. In her appeal, Mrs Orlando has been supported by the Equal Opportunities Commission who have a legitimate interest in ensuring that awards under this head fairly and fully reflect the injury to victims of discrimination. We are grateful for the arguments by both parties to the appeal, and for the concise way in which they were expressed by counsel. Essentially, on behalf of the appellant, three submissions were advanced: In arriving at their conclusion, the Industrial Tribunal had regard to the case of Noone v North West Regional Health Authority [1988] IRLR 195 CA , which was decided prior to the abolition of limits on awards under the Sex Discrimination legislation - Sex Discrimination and Equal Pay (Remedies) Regulations 1993 which came into effect on 22 November 1993. The appellant says that the amount of the award for a severe injury to feelings which the Court of Appeal considered appropriate was pitched on the basis that the upper limit for compensation for all heads of damage and loss was £7,500. Had the cap not been there, the award would have been higher, and the Industrial Tribunal were not cognisant of this point when they made their Decision.[2]The Industrial Tribunal erred in having regard to the fact that the appellant's position was part-time. Being a part-timer is not relevant to the level of award for injury to feelings and Industrial Tribunals should be wary of making generalised assumptions of this sort, especially where, perhaps as a result of long-standing institutionalised discrimination, very many more women than men have part-time employment.[3]The award was perverse. On the facts of this case, no reasonable tribunal properly directing itself could have arrived at an award which was less than £1,000. The proper bracket for such an award in this case was, it was argued, between £1,000 and £2,000. In support of her submissions, counsel for the appellant provided us with a feature article in the September/October 1994 issue of the Equal Opportunities Review. This article reviews awards made in sex and race discrimination cases and compares awards on a number of different bases. We can see that there were 137 cases of sex discrimination in which Industrial Tribunals made awards in the calendar year 1993. The median award for injury to feelings was £1,000: that is, as many people received such an award below that figure as received an award above it. It would appear that the average level of such an award had increased by some 13% over the previous year. A comparison has been made between 111 awards made before the cap was removed (1 January 1993 to 21 November 1993) and 130 awards made after the cap was removed (22 November 1993 to 30 June 1994). Over half of the 130 awards were made in relation to women who had been dismissed from the armed services due to pregnancy. Guidance about awards in such cases was subsequently given by the EAT ( Ministry of Defence v Cannock & Others [1994] IRLR 509 ). From the comparison, if the MOD awards are included, the median award has risen to £1,500; but if they are excluded, the median has remained at £1,000. It will be borne in mind that in the MOD cases the complainant not only lost a job but also, in many cases, lost a career and a way of life in service quarters and, therefore, the awards for injury to feelings might be expected to be somewhat higher than in other cases, where such a feature was not present. We are not convinced that, as yet, there is any sufficient pattern of awards for Industrial Tribunals to be greatly assisted in seeking to 'slot' a case into its appropriate place: it is for this reason, we think, that the statistics are so sensitive to the inclusion or exclusion of awards in the MOD cases. We turn therefore to our conclusions on the arguments presented to us: Each of the members of the Appeal Tribunal, having regard to the Tribunal's findings, would have said that the bracket in this case would have been between £750 and £1,000. The Industrial Tribunal's award cannot be faulted: it was an entirely appropriate award. Accordingly, this appeal will be dismissed.