DERBY SPECIALIST FABRICATION LTD v MR J N BURTON [2000] UKEAT 817_99_2809

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 817_99_2809

Case No Appeal Nos. EAT/817/99 & EAT/1139/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DERBY SPECIALIST FABRICATION LTDAPPELLANT

MR J N BURTONRESPONDENT

Before

Mr Justice Keene

Lord Davies of Coity

Date 28 September 2000

[1]APPEARANCES For the Appellants MR RICHARD CLAYTON (of Counsel) Instructed by: Mr P Schofield Head of Legal Affairs Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ For the Respondent MS HEATHER WILLIAMS (of Counsel) Instructed by: Mr J Upton Messrs Bakewells Solicitors 64 Friar Gate Derby DE1 1DJ MR JUSTICE KEENE : These are appeals first against a unanimous decision of an Employment Tribunal sitting at Nottingham that the respondent was unlawfully discriminated against, contrary to sections 1 and 4 of the Race Relations Act 1976 ('the Act'), and secondly against the amount of compensation awarded. We shall deal with the liability appeal first. The respondent, who is black, was employed by the appellant as a welder between 1989 and May 1998. At some stage he was transferred from site construction to the Tube Shop. The Employment Tribunal found as a fact that:

"At all material times racial abuse was widespread throughout the Tube Shop. No action was taken by the respondent to check this. Indeed Mr Whalley, the personnel manager, did not appear to recognise the climate of racial abuse as a problem. He failed to understand that it might be offensive for a black worker to be likened to a monkey and for another to be described as a "black bastard"."

[2]The tribunal's findings also included the following:

"In or about April 1996 the applicant asked Mr Moore, then training school instructor, why he had failed a test. Mr Moore said, "

I am not having a jungle bunny working in the Welding Shop". The applicant was offended and upset by this incident. … In early 1998 the respondents were faced with a redundancy situation. Welders, including the applicant, were interviewed by an agency with a view to a possible transfer to another company. The agency told the applicant that there was no record that he did any welding work. The applicant did not complain because he did not want to rock the boat. Unlike other welders, he did not get a second interview."

[3]In March 1998 there was a change of foreman. Mr Moore became the foreman. The tribunal found that:

"The applicant reasonably believed that Mr Moore would participate in the redundancy selection process. On 1 May 1998 he resigned. If he had been told that he could take a less skilled job with protected salary, he would not have resigned."

[4]The tribunal went on to reject a submission that the claim was out of time, noting that the effective date of termination of employment was 1st May 1998 and the originating application was received on 31st July 1998. The tribunal stated:

"Accordingly, the applicant's application in respect of his claim that he was unlawfully discriminated against when constructively dismissed was clearly within time, because it was presented within the statutory three-month period. The Tribunal decided that the effect of Mr Moore's racial abuse was continuing and had a direct impact on the applicant's decision to resign. Therefore, the Tribunal could properly consider the applicant's complaint with regard to this matter. However, if the Tribunal was wrong in law, it decided that it was just and equitable to consider the complaint, pursuant to section 68(6) of the 1976 Act. In reaching that decision the Tribunal took into account the applicant's medical condition, his reliance on his union representatives and the advice given, and any prejudice to the respondent."

[5]It then went on to consider the merits of the complaints, referring to King v The Great Britain China Centre

[1991] IRLR 513

CA and rejecting some of the complaints. But it decided that Mr Burton had established on the balance of probabilities that Mr Moore and Mr Harry Winfield had racially abused him. These incidents had occurred in a climate of racial abuse within the Tube Shop. The tribunal found that the appellant company was aware of this. It had been conceded that the company could not avail itself of the statutory defence in section 32(3) of the Act. The tribunal reminded itself of the test for constructive dismissal in Western Excavating (ECC) Ltd v Sharp

[1978] IRLR 27

CA , including the fact that the employee must make up his mind soon after the conduct of which he complains. The respondent's representative, Mr Upton had argued that there had been a continuing policy or practice of discrimination against the respondent up to 1st May 1998 when he resigned and Mr Upton had referred to the climate of racial abuse. The tribunal concluded in paragraph 15 of its extended reasons as follows:

"The Tribunal accepted Mr Upton's submissions. The [ respondent ] had been racially abused by Mr Moore. He reasonably believed that Mr Moore would be participating in the redundancy selection process and that he would not be favourably compared with other colleagues. He had been told by the agency that there was no record that he had done welding work. Unlike other welders, he did not receive a second interview. The [ appellant ] did not tell him that he might get a less skilled job with a protected salary. In all the circumstances the Tribunal decided that the [ appellant ] had, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties. The [ respondent ] was entitled to leave without notice and he had acted promptly. His dismissal amounted to unlawful direct discrimination contrary to sections 1(1)(a) and 4(2)(c) of the 1976 Act."

[6]In its summary of its conclusions the tribunal found that one of the respondent's complaints of discrimination by racial harassment, namely by the trade union representative, Mr Harry Winfield, was out of time, though it had earlier found that Mr Winfield had at some time made a remark to the respondent about "not running about after no black bastard." The tribunal rejected complaints about racial harassment by the previous foreman, Mr North, and by the former manufacturing manager, Mr Bennett. But in separate conclusions it stated:

"(iii) the [ respondent's ] complaint that he was unlawfully discriminated against by the [ appellant ] contrary to sections 1 and 4 of the Race Relations Act 1976 when he was subjected to a detriment by Mr Wayne Paul Moore was well-founded; (iv) the [ respondent's ] complaint that he was unlawfully discriminated against contrary to sections 1 and 4 of the Race Relations Act when he resigned on 1 May 1998 was well-founded."

[7]On behalf of the appellant Mr Clayton submits first that the complaint should have been held to be time-barred. He contends that constructive dismissal does not come within the term "dismissal" as used in section 4(2)(c) of the Act. Section 4(2), insofar as material for present purposes, reads as follows: (2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-(a) in the terms of employment which he affords him; or

(b) in the way he affords him access to opportunities for promotion, transfer or training, or any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

[8]There is no definition of "dismissing" or "dismissal" in the Act. But reliance is placed by the appellant on the reasoning of the Employment Appeal Tribunal in Harrold v Wiltshire Healthcare NHS Trust (unreported, 16th March 1999) , where it was pointed out that Parliament had chosen in the Sex Discrimination Act 1986 to amend the Sex Discrimination Act 1975 so as to include constructive dismissal expressly within the meaning of the term "dismissal". Its failure to do so in respect of the Race Relations Act was seen as significant and deliberate.

[9]Therefore, contends Mr Clayton, the tribunal should have regarded the three-month period for a complaint as starting not from date of resignation on 1st May 1998 but from the date of the act or acts of racial discrimination which, according to the tribunal, had given rise to the breach of the contract of employment by the employer. In that context it is said that the only specific complaint of racial harassment upheld by the tribunal was that relating to Mr Moore in April 1996. Mr Clayton acknowledges that the appointment of Mr Moore as foreman of the Tool Shop in March 1998 could be seen as a further act leading to potential discrimination against the respondent, but even that would not be within a three-month period leading up to the originating application on 31st July 1998. All the other specific allegations of racial abuse or harassment by named individuals were rejected by the tribunal.

[10]The appellant submits that, beyond those factors, there was only the allegedly reasonable belief on the part of Mr Burton that Mr Moore would be involved in the redundancy selection process. At one point Mr Clayton accepted that if Mr Moore had in fact been involved in the selection process, then that would have amounted to a continuing act when put together with his earlier racial remark, because it would have been inappropriate for him to have been involved in the selection process. But as Mr Moore was not so involved as a matter of fact, there was no continuing act of racial harassment and the respondent's reasonable belief that Mr Moore was so involved could not create one. Subsequently, Mr Clayton conceded that, if objectively the belief was a reasonable one, then that would suffice, even if it were mistaken. But he then argued that the tribunal failed to give adequate reasons for finding Mr Burton's belief to be a reasonable one. We shall consider that point after dealing with the time-bar issue.

[11]So far as the tribunal's decision that, if necessary, it would extend time because it was "just and equitable" to do so under section 68(6), the appellant submits that that decision is flawed. Although the tribunal had a wide discretion, the reference to Mr Burton's medical condition concerned events back in 1996, two years before the claim became time-barred. The reference to his reliance on his union representatives and the advice given is not based on any finding of fact in the decision that such advice had been given.

[12]On these issues, Miss Williams for the respondent argues that constructive dismissal does come within the meaning of "dismissal" in section 4(2)(c) of the Act. One should give the statutory wording a purposive construction and the natural meaning of the term "dismissal" does not exclude constructive dismissal. Parliament can be taken to have known the common law position when enacting this statute. Miss Williams draws our attention to Weathersfield Ltd v Sargeant , both in the EAT

[1998] IRLR 14

and in the Court of Appeal

[1999] IRLR 97

, where the view was taken that constructive dismissal does fall within the meaning of "dismissal" for these purposes.

[13]Even if that is not so, then the respondent submits that the "act complained of", which starts the three-months period, must be seen in the light of the tribunal's finding that the racial abuse and discrimination was a continuing act, as was the appellant's failure to do anything about it. By section 68(7), an act extending over a period of time is to be treated as done at the end of that period. This was a case of an accumulation of acts and events demonstrating a repudiation by the appellant of the contract of employment and that accumulation should be seen as continuing until the time of the respondent's resignation. Miss Williams emphasises the tribunal's findings that at all material times racial abuse was widespread throughout the Tube Shop, that the appellant company knew about this climate of racial abuse, and that it took no action to check it. That, she submits, provides the context and the links between the individual incidents specifically referred to.

[14]As for the tribunal's exercise of its discretion to extend time if necessary, the respondent contends that that was not a perverse decision. There was a factual basis for the matters referred to by the tribunal as justifying its decision on this aspect and its reasons are, it is said, sufficiently clear.

[15]We note that in Weathersfield Ltd v Sargeant in the EAT, the tribunal's judgment given by Morison J, President, indicates that the tribunal there regarded the term "dismissal" as being apt to cover a constructive dismissal case. The point was, however, conceded by counsel for the appellant. In the Court of Appeal, there was no dissent expressed from Morison J's views on this aspect, although it is fair to say that the Court did not address the matter explicitly in the course of its judgments. In Harrold v Wiltshire Healthcare NHS Trust , the EAT said this:

"The Race Relations Act does not contain a definition of dismissal. That must be compared with the Sex Discrimination Act 1975 which, by an amendment contained in the Sex Discrimination Act 1986 , designed to bring the Act into compliance with Community law, added s.82(1A) which extends dismissal for the purpose of that Act to include constructive dismissal and expiry of a fixed-term contract, as also provided for in s.95 of the Employment Rights Act 1996 . The Race Relations Act was not similarly amended and we must assume that it was Parliament's intention to do so deliberately."

It later went on to observe:

"We think that the proper analysis is that the underlying racially discriminatory behaviour, leading an employee to resign in circumstances amounting to constructive dismissal for the purposes of unfair dismissal and sex discrimination legislation, amounts to some other detriment under s.4(2)(c) of the Race Relations Act . It is not a dismissal within the meaning of that provision."

[16]Given the fact that in constructive dismissal cases the employee must have acted with sufficient despatch as to avoid affirming the contract, it will not often matter in practice whether it is the resignation or the employer's conduct which is treated as the date of the "act complained of" for the purposes of the three-months period prescribed by section 68 of the Act. We can see some force in the reasoning in Harrold , but in the end we are not persuaded by it. There may be a number of reasons why Parliament chose to make an amendment to the Sex Discrimination Act 1975 , not least its wish to ensure that there could no doubt whatsoever about the Act's compliance with Community law, as the judgment in Harrold indicates. It cannot be taken as an indication by Parliament that, in other legislation with which it was not dealing, "dismissal" was to be given a restricted meaning. We emphasise that because, if one approaches the meaning of "dismissal" in the Race Relations Act without that extraneous influence, there is no reason why it should be so construed as to exclude constructive dismissal. Whether the employer deliberately dismisses the employee on racial grounds or he so acts as to repudiate the contract by racially discriminatory conduct, which repudiation the employee accepts, the end result is the same, namely the loss of employment by the employee. Why should Parliament be taken to have distinguished between these two situations?

[17]Somewhat similar reasoning to that employed in the Harrold case was at one time advanced in the context of unfair dismissal, at a date when the industrial relations legislation did not include what is now section 95(1)(c) of the Employment Rights Act 1996 , the current statutory provision which makes it clear that dismissal includes, for the purposes of unfair dismissal claims, constructive dismissal. The Industrial Relations Act 1971 merely provided that dismissal of an employee arose if, but only if:

"(a) the contract under which he is employed by the employer is terminated by the employer, whether if it is so terminated by notice or without notice, or (b) where under that contract he is employed for a fixed-term, that term expires without being renewed under the same contract."

That contrasted with the Redundancy Payments Act 1965 section 3(1) where dismissal was defined so as to include not only (a) and (b) above but also (c):

"the employee terminates that contract without notice in circumstances … such that he is entitled so to terminate it by reason of the employer's conduct."

Consequently in Sutcliffe v Hawker Siddeley Ltd

[1973] ICR 560

, the argument was advanced that unfair dismissal did not embrace a constructive dismissal. That contention was rejected by the National Industrial Relations Court, Sir John Donaldson, President, saying, at page 564F:

"That comparison points, it is said, to Parliament having intended that there should be no room for an "unfair constructive dismissal"

. We entirely reject that contention. We consider that the omission arose solely because the draftsman thought it unnecessary to include the subsection. We have no doubt that there can be constructive unfair dismissals and that any amendment of the Act of 1971 to include a subsection (c) equivalent to that contained in the Act of 1965 would have no effect other than to dispose of a misconstruction of the Act."

[18]What that decision demonstrates is that there is no requirement as such for there to be an express statutory provision covering constructive dismissal for such to be included in the term "dismissal". It shows how case law established the wider meaning of dismissal in advance of that meaning being incorporated into an express statutory provision. It is therefore a fallacy to believe that that wider meaning finds its origins in such a statutory provision. It does not. In the same way we conclude that there is no reason to give the word "dismissal" in section 4(2)(c) of the Race Relations Act 1976 the narrow meaning now contended for by the appellant. The tribunal below was right in law in the approach which it adopted. That is enough to dispose of the time-bar point.

[19]However, in any event, it is clear that the Employment Tribunal found in this case that the discriminatory acts amounting to a fundamental breach of contract by the appellant continued up until the time of the respondent's resignation. That can be seen from its acceptance of the submissions of Mr Upton to that effect and from its express findings that at all material times racial abuse was widespread throughout the Tube Shop and that the effect of the racial abuse in April 1996 by the man who became his foreman in March 1998 was continuing. At no time did the company take any action to prevent the abuse. That failure was a continuing failure. There is no appeal against the finding that there was a climate of racial abuse in the Tool Shop or that the company was aware of this but did nothing about it. Those are not said to be perverse findings. To that had to be added what the tribunal found to be the reasonable belief in March 1998 and thereafter that the man who had racially abused him in 1996 was now to be involved in the selection process for redundancy.

[20]In a case where the repudiation of the contract consists of an accumulation of events over a period of time, it would be wrong to seek to isolate individual incidents. The continuing conduct of the employer or its continuing failure to prevent racial abuse and discrimination constitutes what the EAT in Harrold described as the underlying racially discriminatory behaviour, and would bring about the "other detriment" within section 4(2)(c) of the Act. Section 68(7)(b) provides that any act extending over a period shall be treated as done at the end of that period for the purposes of the time limit provision. It follows that it makes no difference whether the three month period is seen as commencing with the respondent's resignation because that was his acceptance of the repudiation of the contract and hence a constructive dismissal, or with the end of the period of racially discriminatory conduct amounting to repudiation. It makes no difference because it was only the respondent's resignation which brought that latter period to an end.

[21]We conclude therefore that the Employment Tribunal was entitled to treat the complaints which it upheld as being made in time under section 68. In any event it was prepared to extend time, should that have been necessary, because it saw that as being "just and equitable" within section 68(6) of the Act. Those words give a tribunal a very broad discretion as was emphasised in Hutchison v Westward Television Ltd

[1977] IRLR 69

. We do not accept that the tribunal failed to make adequate findings of fact on the matters it relied on in the respect of that exercise of discretion. The medical condition did indeed stem from events in 1996, as Mr Clayton has stressed, but the tribunal was nonetheless entitled to take it into account. The tribunal referred also to the respondent's reliance on his union representatives and the advice given. It is said that it is not clear what that is referring to. But that brief reference has to be seen in context, bearing in mind that these extended reasons are directed towards persons who are familiar with the case and with the evidence given. This factor would appear to relate back to the submissions recorded in paragraph 8, where Mr Upton on behalf of Mr Burton was arguing that he had been unable "to fully air his grievance and his union had not been helpful". We bear in mind that Mr Burton's shop steward had been Mr Harry Winfield, who was found by the tribunal to have made the remark about "not running about after no black bastard". Put into that context, the tribunal's reference to Mr Burton's reliance on his union representatives and the advice given is sufficiently clear and understandable.

[22]There is no other criticism levelled at the exercise of the tribunal's discretion to extend time. In our judgment it cannot be treated as perverse or open to challenge. It follows that, for all these reasons, the tribunal had jurisdiction to deal with the respondent's complaints.

[23]We turn to the substantive points made by the appellant about the tribunal's decision. There are two arguments which it advances.

[24]First, it is submitted that the tribunal below erred in law in finding that Mr Burton had been constructively dismissed on grounds of race, when in certain instances there are no express findings that the appellant's acts were caused by race. Mr Clayton argues that if one looks at the matters taken into account by the tribunal in paragraph 15 of its extended reasons, there is no finding that all of those were caused by race. While the racial abuse by Mr Moore and the respondent's reasonable belief that he would not be favourably compared with others in the redundancy selection process would seem to relate to race, there is no express finding that the absence of any record that Mr Burton had done welding work was so attributable nor is there any finding that the fact that he, unlike other welders, did not get a second interview was on grounds of race. There is no finding either that the failure to tell him that he could get a less skilled job with a protected salary was on such grounds.

[25]It is clear that some of the individual acts of the employer which in total amounted to a repudiation of the contract of employment were based on racial grounds, as Mr Clayton accepts. It is true that the tribunal has not expressly said of each of the other matters in turn that they were based on racial grounds. However, it seems to us, when read in context, that this is what the tribunal was intending to convey. No doubt its extended reasons could have been worded with greater precision. But those reasons must be read as a whole. It had, before arriving at these conclusions in paragraph 15, reminded itself of the guidance given by the Court of Appeal in King v The Great Britain China Centre . If a tribunal finds a difference in treatment and finds also a difference in race, it should look to the employer for an explanation, and if one is not forthcoming, it can be inferred that the discrimination was on racial grounds. Here, the tribunal is recording differences in the treatment of Mr Burton – no record of him doing welding work, no second interview and no informing him of about a less skilled job with a protected salary – and it notes no reference to any explanation being proffered for those differences. It was clearly open to it to infer that they arose from racial grounds. Moreover, it seems that the tribunal did so infer because its overall finding was that his constructive dismissal amounted to unlawful direct discrimination under the Act.

[26]In Driskel v Peninsula Business Services Ltd

[2000] IRLR 151

, this Appeal Tribunal emphasised that in discrimination cases based upon allegations of harassment:

"It is desirable not to include in this exercise judgments as to the discriminatory significance, if any, of individual incidents – judgment thus far should be limited to the finding of all facts that are prima facie relevant. If ad hoc assessments "discrimination or no" are made the result is a fragmented and discursive judgment; more importantly, there is the potential noted in Reed and Bull for ignoring the impact of totality of successive incidents, individually trivial." [ Paragraph 12 ] The EAT had referred earlier in that judgment to the case of Quereshi v Victoria University of Manchester , dated 21st June 1996, EAT/484/95, where the EAT had criticised a tribunal for making judgments with respect to each incident, saying: "

It was not, however, necessary for the tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on "racial grounds" or on other grounds. That is a misapprehension about the nature and purpose of evidentiary facts. The function of the tribunal is to find the primary facts from which they will be asked to draw inferences and then for the tribunal to look at the totality of those facts (including the respondent's explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on "racial grounds". The fragmented approach by the tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds. The process of inference is itself a matter of applying common sense and judgment to the facts and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not."

[27]We agree with that approach. An Employment Tribunal in such cases should have regard to the totality of a number of successive incidents, because there may well be a cumulative effect. If looking at them overall as a breach of contract they can be seen to be or inferred to be based on racial grounds, so that the complainant would have been treated differently but for his race, then the repudiation by the employer of the contract of employment is to be treated as racially discriminatory. Such racial grounds must, of course, amount to a substantial cause of the employer's actions or his inactions. They must be an important reason for them, but they need not be the sole reason; Owen & Briggs v James

[1982] IRLR 502

[28]The tribunal in this present case seems to have arrived at such an overall conclusion about the totality of the matters which it regarded as amounting to constructive dismissal. It was not required to make express findings of racial grounds for each of the individual acts. We cannot see that it went wrong in law in the approach which it adopted.

[29]The second and final criticism made of the decision in this case, so far as liability is concerned, relates to the reference in the extended reasons to the respondent's "reasonable belief" that Mr Moore would be involved in the redundancy selection process. As has already been indicated, the appellant's position on this changed during the course of argument. The initial challenge, later abandoned, was to the relevance of a reasonable belief on Mr Burton's part, it being suggested that what matters in cases of constructive dismissal on allegedly racial grounds is not what the employee believes, however reasonable in the circumstances, but whether the belief was true. Thus it was originally argued that this factor was of no relevance, because Mr Moore was not in fact involved in the selection process.

[30]Mr Clayton accepted during the course of argument that this submission would not stand up to scrutiny. The crucial word in the tribunal's finding is "reasonably", which implies that there were in existence facts which reasonably led to Mr Burton holding that belief. If an employer by its action or inactions leads an employee reasonably to believe that a discriminatory course of action is going to be followed, it matters not whether the employer intended that course to be followed or in most cases whether that course is in fact eventually followed. There would have been objectively good grounds for the employee's belief, and that is what is relevant when one is concerned with an alleged breach of the implied term of trust and confidence.

[31]The appellant's eventual submission on this topic was that the tribunal had failed to give adequate reasons for concluding that the respondent's belief was reasonable. Mr Clayton contends that no explanation is given for this finding and thus the appellant does not know why it was arrived at.

[32]As we have already said, it must be borne in mind that the extended reasons of an Employment Tribunal are directed towards parties who know in detail the arguments and issues in the case. The tribunal's reasons do not need to be spelt out in the detail required, were they to be directed towards a stranger to this dispute. In the present case, the tribunal first refers to Mr Burton's "reasonable belief" at paragraph (k) in its findings of fact. In the preceding paragraph it had found that in early 1998 a redundancy situation had arisen affecting the welders. We have been told that there was only one foreman in the Tube Shop, and in March 1998 Mr Moore became that foreman. That event is referred to by the tribunal at the beginning of paragraph (k). In those circumstances it seems to us that the tribunal's reasoning is sufficiently clear, namely that the foreman in charge of the Tube Shop would be in a position of responsibility and knowledge where he might reasonably be expected to be involved in a redundancy selection process so far as welders were concerned.

[33]It follows that there is no error of law by the tribunal in its decision that the respondent was unlawfully discriminated against by the appellant and the liability appeal will therefore be dismissed.

[34]We turn to the appeal against the award of compensation. The Employment Tribunal ordered the appellant company to pay £19,551.02 compensation pursuant to section 56(1)(b) of the Act. That was made up of a number of elements, including £5,000 for injury to feelings and £1,267.95 by way of interest on that particular element. It is the award of interest which is at issue in this appeal.

[35]The tribunal, dealing with this matter in July 1999, in arriving at the appropriate award for injury to feelings decided that Mr Burton had suffered for a period in the region of three years. It said:

"His condition had been moderate at first and had become more severe during May and June 1998. Although there had been some improvement, he was still suffering to some degree from injured feelings."

[36]When it considered the question of interest on this part of its award, its stated:

"The Tribunal considered that it was appropriate to award interest from the date in which Mr Moore subjected [ the respondent ] to a detriment which was sometime in April 1996. From an assumed start date of 1 May 1996 to the date of the hearing was a period of three years and sixty two days."

It then did the calculation accordingly.

[37]Regulation 6 of the Employment Tribunals (Interest on Awards etc) Regulations 1996 , insofar as material for present purposes, reads as follows:

"(1) Subject to the following paragraphs of this Regulation – (a) in the case of any sum for injury to feelings, interest shall be for the period beginning on the date of the contravention or act of discrimination complained of and ending on the day of calculation; (b) in the case of all other sums of damages or compensation … and all arrears of remuneration, interest shall be for the period beginning on the midpoint date and ending on the day of calculation. … (3) Where the tribunal considers that in the circumstances, whether relating to the case as a whole or a particular sum in an award, serious injustice would be caused if interest were to be awarded in respect of the period or periods in paragraphs (1) or (2) it may – (a) calculate interest, or as the case may be interest on the particular sum, for such different period, or (b) calculate interest for such different periods in respect of various sums in the award, as it considers appropriate in the circumstances, having regard to the provisions of these Regulations."

[38]It is contended by Mr Clayton that the tribunal has overcompensated the respondent by awarding interest on the £5,000 for the whole of the period during which injury to feelings had taken place. The £5,000 reflected acts of discrimination taking place after April 1996 and indeed injury to feelings which grew more severe in May and June 1998. Where a tribunal decides that there is a continuing discriminatory act (covering two years) the compensation it awards will reflect an assessment of the proper amount to be paid at the end of the period covered. Therefore, there is no justification for awarding interest calculated by reference to the beginning of the act. Consequently the appellant submits that the tribunal should have exercised its powers under Regulation 6(3) so as to award interest from the midpoint of the period between April 1996 and the date of the award. It is said that it was perverse of the tribunal not to have done so.

[39]It is clear that Parliament intended that, unlike interest on other awards where the midpoint was to be taken, interest on an award for injury to feelings should normally be from the date of the discriminatory act. That must be taken to allow for the fact, of which Parliament cannot have been ignorant, that the injury to feelings is not a one-off event but something which will often persist over a period of time. So the mere fact that any award for such injury to feelings reflects injury occurring over a period of time cannot of itself justify a departure from the normal rule in Regulation 6(1)(a). Parliament has clearly chosen to depart from the normal approach to interest awards in personal injury cases involving pain, suffering and loss of amenity. Mr Clayton acknowledged this in the course of argument.

[40]Thus the point becomes whether the tribunal's reference to the injury becoming more severe during May and June 1998, a factor presumably reflected in the £5,000, required the tribunal in its discretion under Regulation 6(3) to depart from the normal rule because serious injustice would result from doing otherwise. Had it stood alone, this argument might have succeeded. But the tribunal also found that the injury to feelings had diminished between then and its decision in July 1999. So the tribunal was faced with a variation first up and then down in the gravity of the injury to the respondent's feelings.

[41]In those circumstances it must have been open to the tribunal to decline to find that serious injustice would be caused by adhering to the normal approach. It seems to have given consideration to whether or not it should exercise those powers, since it expressly uses the phrase "it was appropriate to award interest". The conclusion which it arrived at was not a perverse one and this tribunal is not justified in interfering with the award. This appeal will also be dismissed.