HM Prison Services & Ors v Johnson [1996] UKEAT 1033_95_1902

EAT

HM Prison Services & Ors v Johnson

[1996] UKEAT 1033_95_1902 · 1996-02-19

JUDGE CLARK:

This is an appeal by three Respondents to a complaint of unlawful race discrimination by the black Applicant, Mr Johnson, against findings made by the London (South) Industrial Tribunal and contained in a decision dated 15 August 1995.

The grounds of appeal may conveniently be divided into the liability issue and the quantum issues. The question for us at this Preliminary Hearing stage is whether any or all of these issues raise arguable points of law to go to a full hearing of this Appeal Tribunal.

First, the liability issue. In its full and careful extended reasons, the Tribunal found, inter alia, that the first Respondent, Mr Armitage, Head of Operations at Brixton Prison where the Applicant was employed as an auxiliary, had discriminated against the Applicant in the way in which he dealt with a disciplinary matter arising out of an incident on 15 February 1993. In short, a fellow auxiliary, Mr Marsden, the second Respondent who was white, had reported the Applicant for leaving his shift early. This matter had been investigated by Mr Armitage, who had administered an oral warning to the Applicant.

The Industrial Tribunal expressed their conclusion at paragraph 34 of the reasons in this way:

"Finally, the Applicant complained that his being given a verbal warning, which was placed on his file, was a detriment and that it was contrary to section 4(2)(c) read either with section 1(1)(a) or section 2(1)(c). The First Respondent said that the Applicant's race and his previous history had nothing to do with the decision to confirm in writing his verbal warning. Yet he told the Tribunal that he had investigated the Applicant's claim that such a practice existed and found that it did. So much so he circulated a memorandum making it clear that no-one was to leave before at least two shift reliefs had arrived. He had been told that white officers had left early, but chose to do nothing about this complaint, not even touching upon it in his memorandum to the Applicant. However, the formal disciplinary procedure was not followed; the sanction of a "verbal warning" recorded formally, was outside the disciplinary procedure and there was no justification for it, given the fact that a custom of going early existed. No similar action was taken against any other auxiliary. In the absence of any other explanation and noting that the First Respondent commented that the Applicant thought that all white people were racist, the Tribunal infers that the reason why the Applicant was given such a warning was because in the past he had complained of race discrimination. The First Respondent was aware of the investigation into the Applicant's complaint and that Mr Leonard had found that the Applicant's complaints were unfounded. The Tribunal finds therefore that the Applicant was subjected to a detriment of a verbal warning, contrary to section 4(2)(c) of the Act, read with section 2(1)(c). The Tribunal finds that the First Respondent committed an act of unlawful victimisation contrary to section 33(2) of the Act and in doing so, knowingly aided the Third Respondent to discriminate against the Applicant, contrary to section 33(1). The Third Respondent is liable for the acts of the First Respondent by virtue of section 32(1) of the Act."

Lord Meston on behalf of the first Respondent, wishes to argue that there was insufficient evidence to permit the Tribunal to draw an inference of discrimination by way of victimisation against Mr Armitage. In our judgment, that submission is untenable. The Tribunal's reasoning at paragraph 34 cannot be faulted and when taken in conjunction with the Tribunal's other findings, particularly at paragraphs 21 and 22 of their reasons, we can see no point of law which could properly be argued and we dismiss the liability part of this appeal.

The quantum issues relate to the Tribunal's awards against all three Respondents for injury to the Applicant's feelings and to its award by way of aggravated damages. Under the first head, the Tribunal awarded £20,000 against the third Respondent, the Prison Service, and £500 each against the first and second Respondents. The award under the latter head was in the sum of £7,500. We accept that there is a dearth of guidance as to the proper level of awards under these heads of loss, following the abolition of the upper limit on awards, as a result of the coming into effect of the Race Relations Remedies Act 1994 in July of that year. We bear in mind also the point of principle which Lord Meston wishes to argue in relation to awards of aggravated damages in discrimination cases of this sort, and the need for comparisons to be considered between the approach in race cases with awards made in claims of sex discrimination, which are now similarly unlimited, and indeed possible comparisons which may be made with the level of awards made in common law claims for damages for personal injury.

We propose to say no more about the merits or otherwise of the quantum issues. We are satisfied that the Appellants have raised matters which ought to be argued at a full hearing. Consequently we shall grant leave for the quantum issues identified at paragraph 6(2), (3) and (4) of the Notice of Appeal to proceed to a full hearing.