Post Office v Silva [1997] UKEAT 375_97_0807

EAT
Post Office v Silva
[1997] UKEAT 375_97_0807 · 1997-07-08
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether there is an arguable point of law in the Post Office's proposed appeal against a unanimous decision of an Industrial Tribunal held at London (North) on 27th January 1997. That decision is in writing and was sent to the parties on 30th January 1997, and by it Mr Silva, an employee of the Post Office was awarded the sum of £11,756.60 as compensation for acts of unlawful discrimination committed against him for which the Post Office were responsible.It is not suggested that the decision on liability in this case should be made the subject of an appeal; rather, it is against the compensation which has been awarded to Mr Silva and, in particular, to the amount which they have allowed by way of compensation for injury to feelings.The passage in their decision where they deal with this, is at paragraph 8. The tribunal say:
"8 We considered the injury to feelings suffered by Mr Silva. There is no dispute that he has suffered greatly by the racial discrimination that he has experienced. He had a compulsory transfer to an unknown depot and, as a consequence, his health problems appear to have been exacerbated. Exhibit A1 documents 9 and 10 dated 10 January 1997, refer to the fact that Mr Silva was having financial problems due to his drop in salary after being transferred to Uxbridge. We award the sum of £7,500.00 in respect of injury to feelings. The agreed interest is 14.66%. This amounts to £8,599.50."
In paragraph 9 the Industrial Tribunal considered whether to make an award of aggravated damages. On the facts of the case they came to the conclusion that such an award should be made, and they this:
"9 ... In our original decision we were condemnatory in particular of Mr Evans. We considered that he had behaved in a particularly high handed manner, although he may not have been malicious. No attempt was made to investigate the incident involving Mr Silva and Mr Hartnell. Mr Evans believed Mr Hartnell's version of the events totally despite his implausible story. In respect of the heading of aggravated damages we award the sum of £1,000.00. ..."
This morning we have been entertained to a persuasive submission prepared on the Post Office's behalf and advanced by Miss Heal of Counsel, who appeared at the original hearing.Her attack was confined to the compensation award for injury to feelings. She made three points. She said in the first place that the applicant gave no direct evidence that his feelings had been injured by the discrimination. Secondly, she says that the second sentence of paragraph 8 which I have recited, that is the sentence beginning "there is no dispute", does not do justice to the position taken by the Post Office. There was a substantial dispute she says as to whether he had suffered greatly by the racial discrimination which he had experienced. She said that the Industrial Tribunal in any event failed to distinguish between injury to feelings which comes from unlawful discrimination from misconduct not based on race. It is important, she said, that the tribunal should concentrate on the knowledge that the victim has that he is being victimised or discriminated against because of his race. Thirdly, she says, that the award is arguably too high having regard to other awards in other cases.We are of the clear view that none of these points is reasonably arguable and, therefore, the appeal is not fit for hearing before a full tribunal.In the first place, it is manifestly clear, as it seems to us, that Mr Silva was suggesting in his Originating Application and supported by his witness statement that he was suffering injury to feelings as a result of his unlawful treatment, He made the complaint that the employer's actions were grossly unfair, and in his witness statement he pointed out that he had been the victim of both loss of income and unfair judgment, and he said this:
"Although I was the victim of a racial attack, abusive behaviour and physical attack. I am the one that has been transferred and suffered loss of earning and time as stated above. Yet my attacker has suffered no loss what so ever. I consider this to be Racial Discrimination."
It seems to us that the applicant is saying that he is very aggrieved by the treatment he has received at the hands of his employers.Accordingly, it seems to us simply unsustainable to suggest that this was not a case where the tribunal should have been approaching the question of injury to feelings at all. We say that with confidence because the tribunal would not otherwise have received evidence from a psychiatrist.As to the second point, it seems to us quite plain that the Industrial Tribunal were entitled to have regard to the way Mr Silva had suffered as a result of the mistreatment of him by the Post Office Management. They were in the best possible position to observe and assess the extent of the injury that he had sustained as a result of his belief that he had been the victim of unlawful discrimination. He was asserting racial discrimination; throughout, his employers were denying that they had mistreated him on the grounds of his race. He had to go to the tribunal to make his point.In those circumstances, it seems to us that this is not a case such as a dismissal case where a tribunal must try and distinguish between the injury to feelings which is caused by the act of dismissal and the injury that was caused by the racial element in such an act. It seems to us clear that his transfer which was done in a high-handed manner, was an act of racial discrimination and his feelings were injured as a result of that, and he was entitled to full compensation for those injuries to his feelings.As to the third point. That is that £7,5000.00 was too high an award, we simply do not agree. This was a bad case of race discrimination, as evidenced by the award of aggravated damages. It was for the industrial jury to assess the level of the award. We are not persuaded that it is reasonably arguable that £7,500.00 in the circumstances of this case, was outside the bands of reasonableness. In matters such as this, an Industrial Tribunal has a relatively wide margin of appreciation. It seems to us that it is therefore not plausible to argue that the Industrial Tribunal have erred in law in arriving at their conclusion on the total amount. Accordingly we are all clearly of the view that this appeal is hopeless and should be dismissed at this stage.