DR A DOSHOKI v DRAEGER LTD [2001] UKEAT 0939_01_1601

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0939_01_1601Case No Appeal No. EAT/0939/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR A DOSHOKIAPPELLANTDRAEGER LTDRESPONDENT
Before
Mr Justice Bell Mr J R Crosby Ms B SwitzerDate 16 January 2001
[1]APPEARANCES For the Appellant DR ABDUL DOSHOKI (The Appellant in person) For the Respondent MR RAOUL DOWNEY (of Counsel) Messrs Pickworths Solicitors 55 Marlowes Hemel Hempstead Herts HP1 1LE THE HONOURABLE MR JUSTICE BELL This is an appeal by Dr Doshoki against an award of £750 for injury to his feelings caused by discrimination on the grounds of race on the part of the Respondent employer, Draeger Ltd. The award was part of a decision of the Employment Tribunal held at London Central on 22 June 2001, promulgated on 5 July 2001.[2]As Dr Doshoki's written and oral argument before us this morning has raised matters which extend beyond the acts of discrimination founding the award, it is necessary to set out the essential history of his Tribunal proceedings against the Respondent and to stress the limited scope of the appeal.[3]Dr Doshoki is 42 years of age. He was employed by the Respondent as a Territory Sales Manager from June 1997 to March 1998 when he was dismissed without notice. In May 1998 he made a complaint of:
"Victimisation/racial discrimination, breach of contract and unpaid wages (commission)."
The details of his complaint included allegations that he was subjected to: "Occasional racial comments and taunts." by other members of the Respondent's sales team because he was of Iranian origin. He alleged that the underlying reason for his dismissal was racial prejudice and his dismissal was an act of victimisation and racial discrimination contrary to the Race Relations Act 1976 . It was also, he contended, a breach of his contractual rights. The Respondent denied racial discrimination or victimisation and contended that it was entitled to terminate Dr Doshoki's contract of service without notice by reason of serious misconduct on his part.[4]On 26 November 1998 the Employment Tribunal held that Dr Doshoki had been wrongly dismissed in breach of contract but it rejected his complaint of racial discrimination. It did not expressly deal with his complaint of victimisation which was based on the contention that his dismissal was, in part at least, the result of complaints of racial abuse which he had made. The Employment Tribunal found that the racial taunts did not amount to a detriment for the purposes of the 1976 Act and that the Respondent's decision to dismiss Dr Doshoki summarily was not in any way a decision based upon racial grounds. It awarded damages of £2,505.82 for wrongful dismissal.[5]Dr Doshoki appealed to the Employment Appeal Tribunal and at a Preliminary Hearing on 15 September 1999 the Employment Appeal Tribunal allowed the appeal to proceed to a Full Hearing on two grounds; first, that the Employment Tribunal failed to deal at all with Dr Doshoki's complaint of victimisation; second, that the Employment Tribunal was wrong to find that racial insults directed at Dr Doshoki did not amount to a detriment for the purposes of the 1976 Act, the basis of its rejecting his case of discrimination. The Employment Appeal Tribunal rejected at the preliminary stage Dr Doshoki's contention that the Employment Tribunal had failed to consider whether, in dismissing him, the Respondent treated him less favourably on the grounds of race, the third ground of appeal.[6]On 8 March 2000 the Employment Appeal Tribunal rejected Dr Doshoki's application to reinstate that third ground of appeal. Dr Doshoki's appeal was heard by the Employment Appeal Tribunal on 24 November 2000. The Employment Appeal Tribunal rejected the first ground of appeal holding that it followed from the Employment Tribunal's express finding that there was no racial element involved in Dr Doshoki's dismissal that the complaint of victimisation failed. The Employment Appeal Tribunal allowed Dr Doshoki's appeal on the second ground and remitted the issue of racial discrimination by reason of racial taunts or insults to a fresh Tribunal. By its decision dated 5 July 2001 the fresh Tribunal unanimously concluded that Dr Doshoki was discriminated against on the grounds of race by the Respondent in respect of remarks made to him by certain of its employees and, without inviting representations from the parties on the question of remedy, it awarded compensation of £750 with interest of £190.78. Dr Doshoki would like to raise again the question of his dismissal which he still attributes to racial motives both directly and related to his complaints to the Respondent about the racial taunts. He feels that to look at compensation in respect of the racial taunts alone is to take a piecemeal approach to the way, as he contends, he suffered at the Respondents hands.[7]It follows from the procedural history which we have outlined that we, on this Appeal Tribunal, are concerned only with the question of whether the Employment Tribunal's award for injury to feelings by reason of the taunts or insults which the Employment Tribunal found amounted to discrimination on the grounds of race, was so inadequate as to amount to an error of law allowing this Appeal Tribunal to interfere. If we decide that the award was so inadequate, the fact that the Tribunal did not give the parties, including Dr Doshoki, an opportunity to address it on the proper amount of compensation, is neither here not there. We have heard the submissions of Dr Doshoki and of Mr Downey, counsel for the Respondent. We can, pursuant to Section 35 of the Employment Tribunal's Act 1996, assess the proper amount of compensation on the basis of the relevant facts and matters found by the Tribunal. That will clearly, in our view, be the most convenient process helpful to the parties if this appeal is in principle to be allowed.[8]Facts and matters found by the Tribunal relevant to the appeal appear from its Extended Reasons for the decision as follows. In paragraph 3 of the Extended Reasons the Tribunal recorded that it had heard evidence from Dr Doshoki. On behalf of the Respondents they had heard only from a Mr Jones who was formerly Dr Doshoki's manager. The Tribunal recorded that it formed a generally favourable opinion of the evidence of Dr Doshoki. The Tribunal also thought well of Mr Jones but on an issue as to whether Dr Doshoki complained to Mr Jones about remarks which had been made to him, the Tribunal preferred the evidence of Dr Doshoki.[9]In paragraph 4 the Tribunal recorded its specific findings of fact, stating that they found in general terms that comments had been made to Dr Doshoki (to whom of course the Tribunal referred as the Applicant) in accordance with his statement. They recorded the incidents starting in October 1997 and we feel bound by that finding, although Dr Doshoki, in his submissions said that they started as soon as his employment started, in June 1997. The findings were recorded by the Tribunal as follows:
"(a) On 2 October 1997 at a training session in Bath he [that is Dr Doshoki] was told on separate occasions by Mr Howarth, "
Oh, shut up, Ayatollah" and by Mr Bertuzzi, "This solution could only come from an Arab." Similar comments were made later in the conference. (b) On 19 and 20 January 1998 during a training session at Hemel Hempstead, Mr Howarth referred to him as "Ayatollah" on at least two occasions. (c) On 20 January 1998 while practising sales technique for a new product Mr David Grizzle, as part of the presentation, introduced the Applicant as "Now I hand you over to a Eunuch." Mr Grizzle then corrected himself and said, "Unique person". We find that this was an intentional joke. Mr Jones who observed the incident realised that there was a connection between the joke and the Applicant's race. He formed the opinion that the Applicant enjoyed the joke and was not upset. The Applicant was annoyed. Mr Grizzle apologised before the end of the course. (d) On 6 February the Respondents had their annual dinner and dance at a hotel in Tring. During the evening Mr Howarth made remarks about the Applicant drinking wine and stated that the Ayatollah would kill him if he saw him. Arabs should not drink wine. He further said that Abdul had got the biggest dagger or sword. (e) A week or ten days later, during a car journey the Applicant told Mr Jones that he should control Howarth and Bertuzzi. He suggested their jokes had gone too far. Mr Jones' response was that they were just joking. …" The Tribunal went on to say that it did not accept Dr Doshoki's allegations in respect of events at a dinner held on 26 February 1998. It continued in its reasons as follows:
"We find that the Applicant was annoyed and upset by the repeated reference to him as an Arab or the Ayatollah by Mr Bertuzzi and Mr Howarth. These comments seem to have been made on every occasion after October 1997 when the Applicant met them at company activities. These activities only occurred every month or two. The Applicant was particularly upset about the reference to a eunuch. In evidence the Applicant stated that these comments upset him. He felt the Company was not committed to him. Effectively he was being ridiculed in public and the Company did nothing about it."
[10]The Tribunal went on to find that the taunts amounted to discrimination on grounds of race. In doing so it made further findings relevant to the appropriate amount of compensation. In particular, in paragraph 9 it recorded its finding that the Applicant was affected by the comments and continued:
"It is important to bear in mind that the reference to him as an Ayatollah and an Arab were repeated on a number of occasions by Mr Howarth and Mr Bertuzzi. Whilst he only met them at monthly or two-monthly intervals, their conduct seems to have been repeated on each occasion. What may on one occasion be merely banter becomes extremely wearing and annoying when repeated. They are racially-specific remarks and we find that they had the effect upon him which he has described. He was being publicly ridiculed. This was a disadvantage to him. We find that it would have been a disadvantage to any reasonable employee who might have felt similarly disadvantaged in those circumstances. The "eunuch" remark only occurred once but is serious. We can understand that he felt insulted."
In paragraph 11 the Tribunal said:
"...we agree with the Applicant's view that it was not appropriate to make complaints of these matters on their own since they were comparatively minor."
That was a reference to Dr Doshoki not having complained to the Tribunal about the remarks until he made his complaint of wrongful dismissal. In paragraph 14 the Tribunal recorded:
"Having reached this decision and in view of the then time, the Tribunal went on to consider the question of compensation without requesting further comment from the parties. In view of the previous decision of the Tribunal, the only award which could be made to the Applicant was for injury to feelings. The Tribunal's view was that these remarks were not in themselves very serious. They lay towards the lower end of the scale. It was clear from the evidence that the Applicant's major concerns were with the other issues which had been previously dealt with and in which he had been unsuccessful. These in particular related to him losing his job, about which he was clearly still upset. The Tribunal had to ignore those matters when assessing the injury to feelings. We had to take into account the fact that racially sensitive names were applied to him. He did not register his upset at this until late in January, only a week or two before he was dismissed. We have not found that any incidents occurred after that."
In fact, that last comment must be an error because the Tribunal had earlier found that the last incident of taunts was on 6 February 1998. The Tribunal continued in its Extended Reasons:
"It is the Tribunal's view, therefore, that compensation should be calculated at the lowest end of the appropriate figures and have decided that a figure of £750 would be an appropriate award. The act complained of occurred on 6 February 1998 and the Applicant is entitled to interest on that figure."
The Tribunal concluded by pointing out that interest rates had changed from 8% to 7% per annum between February 1998 and the date of its decision and it chose the median of 7½% as the appropriate rate.[11]Before us this morning, Dr Doshoki stressed the following relevant matters. The taunts to which he was subjected did affect his work and his enjoyment of his work. All the incidents took place publicly in the presence of a large number of employees. His feelings of hurt were made worse by three or four of those fellow employees being called to say that they never heard any of the alleged remarks, although neither Mr Bertuzzi nor Mr Howarth were actually called at the first Tribunal. Dr Doshoki stressed that he felt more hurt by the fact that he got no support from the Respondent company. He argued that we had to look at the whole impact on his feelings of the remarks in question. That impact included a sense of disillusionment with his employer and a feeling of alienation. He ended his submissions by saying, that since the Respondents had killed off his career, he thought they should pay him £100,000 of compensation. He appreciated that he was not going to get that but the compensation should fall in a high category. In his written submissions he had suggested a figure of £25,000 plus £5,000 aggravated damages.[12]Mr Downey's points, in his argument this morning, were that this Tribunal should be careful not to take account of matters which were not caused by the discriminatory acts which the new Tribunal had filed. He said that its key findings amounted to a limited number of specific incidents. The Tribunal found that the "eunuch" remark had particularly upset Dr Doshoki, but Mr Grizzle had apologised for that. Mr Downey stressed the Tribunal's references to the incidents of discrimination involved in the taunts in question being comparatively minor.[13]In that respect however, we accept Dr Doshoki's contention that they were comparatively minor in relation to what he saw as the far more serious matter of his dismissal, as he would contend, on racial grounds. We do not accept that he was agreeing that the taunts were minor in themselves. If the Tribunal concluded that they were a minor matter, we would disagree, respectfully, with the Tribunal.[14]Mr Downey referred to the case of ICTS (UK) Ltd v Tchoula [2000] IRLR 643 where the Employment Appeal Tribunal suggested that it was convenient to divide cases of discrimination or victimisation on the grounds of race into lower and higher categories. He contended that his case fell into the lower category and so long as the award of £750 fell within the legitimate bounds of the lower category, as Mr Downey contended it did, we should not interfere with it. He reminded us that we are not considering whether the award coincides with our own view of the right amount of compensation, but whether it falls within an appropriate range and is therefore an amount which a Tribunal not acting perversely could come to. Mr Downey cautions the Tribunal that Dr Doshoki is clearly affected by what ultimately happened to him in terms of his dismissal and that we must be careful to discount his feelings in that respect when assessing the value of injury to his feelings caused by the taunts.[15]We have also reminded ourselves of the essential points in the case of Tchoulau , to which Mr Downey referred, as they might apply to this particular case. In particular, that the question for us is whether the Tribunal's award of £750 was, in our judgment, so inadequate as to amount to an error of law allowing us to interfere. We remind ourselves, as the case of Tchoula stressed, that:
"Awards for injury to feelings are compensatory not punitive. Awards should not be so low as to diminish respect for the policy of anti-discrimination legislation; nor so high as to be perceived as a way to untaxed riches. They should have a broad general similarity to the range of awards on personal injury cases. Employment tribunals should remind themselves of the value in everyday life the sum they have in minds. Awards should command public respect."
We note that in Tchoula this Tribunal, differently constituted of course, pointed out that help in measuring the appropriate sum to be awarded for damage to feelings could be gained from levels of award for personal injury and comparison with such awards. Finally, we note what was said in Tchoula about awards of aggravated damages in cases of compensation for injury to feelings. The Employment Appeal Tribunal in that case expressed the view that it was a matter of form whether there was an award expressed as compensatory and a separate award expressed as aggravated damages which could be awarded in cases of high handed, malicious, insulting or oppressive behaviour directed towards the Applicant or whether there was just to be one award. The essential was that the amount awarded to the Applicant in the particular case should be appropriate compensation.[16]Having considered all those matters we have come to the following conclusions. In our view the award of £750 was inadequate to a degree where it was wrong in law. Even though the discrimination involved in the taunts in this case, falls, in our view, within the lower rather than the higher category of case, insofar as it is necessary to make such a distinction, it is clear from the case of Tchoula that appropriate compensation in the lower category of cases extends at least to £10,000 because that is the sum which the Employment Appeal Tribunal eventually awarded, the total sum in that case, although it put Mr Tchoula's injury in the lower category. We cannot accept Mr Downey's submission that provided that the Tribunal puts its award in the correct category, lower rather than higher, it cannot be successfully challenged. That cannot be just when the range of "lower" award is so great. The award of £750 in this case fell at the very bottom, or very close to the very bottom, of the entire scale of awards of compensation for injury to feelings. In our view the injury to Dr Doshoki's feelings and the discriminatory taunts which led to the injury to his feelings cannot properly be regarded as falling at the very bottom, or indeed, near the bottom, of the scale of awards. In terms of personal injury claims, £750 would nowadays be the minimum, or very close to the minimum, award, for the very slightest physical injury deserving of damages at all; whereas the taunts in this case were repeated and hurtful and in our view plainly alienating, to the Appellant and continued, albeit from time to time, over a period of some four months by the Tribunal's findings. We consider that the alienating feature of the remarks on the face of them setting Dr Doshoki apart from the other members of the sales team as an object of public (albeit temporary) ridicule, merited a significant sum of compensation well in excess of that awarded. We are not impressed by any argument that Dr Doshoki did not consider the initial taunts important enough to make an immediate complaint. Any employee must shrink from making complaints against his colleagues. We can understand why Dr Doshoki should not do so until the time, or shortly before the time, of his dismissal. On the other hand this case has to be firmly distinguished from the more serious kind of case where the Applicant's employment is threatened or terminated by reason of the discriminatory acts against him. However Dr Doshoki may feel about the truth of the matter, as he sees it, we cannot take account of his dismissal in making an assessment of the proper sum of compensation of injury to his feelings in the light of the procedural history as we have outlined it.[17]Bearing all the various factors in mind in this case we consider that the appropriate sum of compensation is £4,000. That is a figure which would fall within the lower category of awards by the definition in Tchoula but it is very significantly greater than the sum of £750 which the Employment Tribunal awarded; a large difference in itself and something close to five times as much. In reaching that figure we take account of the insulting and humiliating elements of the remarks in question. We make no separate award of aggravated damages. The aggravation arising from the insult is taken account of in the figure to which we have come. We do not see this as a case of abuse of position or power by the Respondent possibly justifying exemplary damages, limiting ourselves as we have to, to the true scope of the discriminatory remarks found over the history of the Tribunal proceedings.[18]So far as interest is concerned we note that according to the appropriate regulations, it runs for the period beginning on the date of the act of discrimination complained of and ends on the day of calculation. There was sufficient, in our view, by way of taunts to amount to discrimination by the time that the taunts were repeated in January 1998, so we take a period of four years from then to the time of this hearing. We approve of the Tribunal's broad brush approach in taking a figure of 7½% as the median between figures of 8% and 7%. (Mr Downey did not contend that it led to a distorted figure, when arguing the appeal before us.) That leads to a total accrual of interest of 30%, which by our calculation comes to £1,200.[19]The total award inclusive of interest is £5,200 which must, in accordance with the reasons we have given, be substituted for the Employment Tribunal's award. To that extent this appeal is allowed.