MR A A KHAN v PRIORITY AIR FREIGHT LIMITED [2002] UKEAT 0093_02_2111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0093_02_2111Case No Appeal No. EAT/0093/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A A KHANAPPELLANTPRIORITY AIR FREIGHT LIMITEDRESPONDENT
Before
His Honour Judge J BurkeDate 21 November 2002
[1]APPEARANCES For the Appellant MR JOHN CROSFILL (Of Counsel) Instructed by: Messrs Baron Grey Solicitors Langtry House 441 Richmond Road East Twickenham Middlesex TW1 2EF For the Respondent MR MARTYN WEST A Representative Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB JUDGE J BURKE QC In this appeal Mr Khan challenges the award of £1750 for injury to feelings caused by disability discrimination on the part of his ex-employers, Priority Air Freight Limited, who we shall call "Priority", made by the Employment Tribunal sitting at Reading chaired by Mr Craft and sent to the parties with extended reasons on 28 November 2001.[2]Mr Khan sustained severe injuries in a robbery at his business premises in April 1992. As a result he has permanent and serious limitation in the use of his left arm and fingers. The details of his disabilities are set out in the Employment Tribunal's first decision dated 3 September 2001 in which the Tribunal found that Priority had been guilty of disability discrimination and need not be repeated here.[3]Mr Khan was employed by Priority from 23 October 2000. He was expecting and the employers expected him to spend most of his time undertaking clerical work. However, after some time, Priority decided that Mr Khan was too slow in the use of keyboards. They took on agency workers to deal with his clerical duties and transferred him to the warehouse where there were staff shortages. The work in the warehouse involving carrying weights up to thirty-two kilos and other physical tasks posed difficulties for Mr Khan because of his disabilities. On 28 November Mr Khan suffered two impacts, as the Tribunal found, to his left arm, one at work and one at a petrol station. He went off work as a result and was signed off work by his GP until 18 December.[4]While he was off work Priority decided to replace him. It is not necessary to go into details. He was dismissed; he was offered at alternative work wholly in the warehouse which he could not accept. The dismissal occurred on 11 December. He was given two weeks notice or pay in lieu of notice, it matters not which. He received statutory sick pay until the end of those two weeks just before Christmas, because he was off sick. The Tribunal found at the original hearing that Mr Khan was a disabled person and that Priority had discriminated against him for a reason related to his disability, both in moving him away from his predominantly clerical duties to predominantly manual duties and dismissing him and that Priority had failed to make reasonable adjustments for his disabilities. The Tribunal further found that the discrimination was not justified. They adjourned the question of remedies to a subsequent hearing. The remedies hearing was held on 19 October 2001. It is from the decision of the Tribunal arising from that hearing that the present appeal is brought.[5]The Tribunal awarded Mr Khan £1750 in respect of injury to feelings and £1094.79 in respect of loss of earnings, exclusive of interest. They declined to make any award in respect of personal injuries. It is only the award of injury to feelings which is now the subject of challenge.[6]Mr Khan told the Tribunal at the remedies hearing that he had suffered emotional distress, psychological trauma and severe depression as a result of what had happened to him at the hands of Priority. He claimed that his General Practitioner had made more than one offer to him of medication to help him through the psychological trauma. He claimed that, as a result of the discrimination of which he was the victim, he had become diabetic and experienced problems with high blood pressure. His witness statement, which has been put before us, said this in so far as material:
"2. Due to the dismissal and the manner in which I was treated whilst I was employed by the Respondent company I have suffered emotional and psychological trauma, and in particular have suffered from severe depression. 3. My General Practitioner is aware of my psychological condition following my dismissal and has offered to prescribe me medication to help me get through this difficult time, but I declined his offers as I have been concerned about becoming addicted to such medication. 7. Due to the stress and psychological trauma caused by my dismissal I have now become a diabetic and also have problems with high blood pressure. I now have to take medication on a regular day to day basis and have to have a medical check-up every 4-6 weeks."
He then describes how he had very little income while unemployed and how he found it traumatic and depressing that he was unable to participate fully as a result of lack of money in the celebrations of Eid at the end of the month of Ramadan and in relation to Christmas.[7]In support of his claim to financial loss, Mr Khan put forward a detailed schedule and, in evidence, gave an account of his work history since his employment with Priority had come to an end. It is common ground that the schedule which he put forward was substantially inaccurate and in particular did not reveal that, having obtained work on a full-time basis on 15 January 2001, he had after seven weeks in that employment chosen to go part-time and to earn less money when he could have continued to work on a full-time basis.[8]The Tribunal also found that, in that first employment, after he returned to work he had earned substantially more than he had admitted and that he could and should have earned more than he did in the period when he chose to go part-time. The figures do not matter for present purposes. The important point is that the Tribunal were not impressed by Mr Khan's evidence as to his financial losses caused by the discrimination. They clearly regarded his evidence as unreliable. The details of Mr Khan's evidence and the Tribunal's view of it are set out in paragraphs 7-11 and 25-26 of the decision.[9]The history of his work and his evidence as to it were also of potential relevance to the Tribunal's award for injury to feelings and their decision that they should not make an award for personal injuries ie injury to health either psychological or physical. Mr Crossfill who has put forward Mr Khan's appeal with good sense and vigour, has submitted that the fact that Mr Khan's credibility in relation to his financial loss had been seriously damaged did not necessarily mean that his evidence as to injury to health and injury to feelings had also to be regarded by the Tribunal as undermined or to be rejected; and the submission put that way is undoubtedly correct. It did not follow from the Tribunal's view of his evidence as to financial loss that they must take the same view of his evidence about injury to feelings and injury to health; but in common sense he faced a considerable handicap in areas of his evidence as to injury to health and injury to feelings where he was making specific allegations which were not supported by any independent evidence.[10]Such evidence came from a letter from Mr Khan's General Practitioner, Dr Sandhu, which was put before the Tribunal. That letter said, so far as is material:
"On 14 December 2000, while he was still off work due to painful condition of left forearm, he narrated to me that due to excessive sick leave, he lost his job on 11 th December 2000. He was much saddened and had clinical sign of reactive depression. He was counselled but did not need any medication. After this consultation, he was seen on 2 nd January 2001 for further sick note due to painful condition of left forearm. Since then he was seen on numerous occasions for various other medical problems."
[11]It is to be noted that it appears from this letter, firstly, that, in contrast to Mr Khan's account, there is no reference to any offer of medication by the doctor to Mr Khan on 14 December which offer was rejected and, although Mr Khan's witness statement talks of offers of medication in the plural, medication is only referred to once as being something which Mr Khan did not need. Secondly, the letter does not record a diagnosis of clinical depression, an identifiable psychiatric illness. The letter says that Mr Khan showed "clinical sign of reactive depression". It is of course well known to those who have to assess awards for personal injuries that the psychiatric illness of clinical depression involves a combination of symptoms, and it is clear that this letter does not contain an opinion of Dr Sandhu that Mr Khan was suffering from that psychiatric illness. Thirdly, the letter records no further attendance at the surgery from any other symptoms attributable to the discrimination in the form of depression, stress or otherwise; in contrast on 2 January, when Mr Khan attended the surgery as the letter says for a further sick note due to the condition of his left arm, he was told by Dr Sandhu that he was fit to go back to work and to find work (see Tribunal's decision, para 19). And fourthly, there was no evidence to support Mr Khan's allegation that he had been caused to suffer from diabetes or high blood pressure by the treatment which he had received at the hands of Priority.[12]We should also record that Dr Sandhu was not called as a witness. We say that in no critical spirit but simply to record that that was so. Nor was any other letter put before the Tribunal which, by way of clarification, threw any further light upon what Dr Sandhu had said. The Tribunal at paragraph 18 of their decision said this:
"18. There was no medical evidence of the Applicant suffering from a psychiatric illness or damage as a result of the Respondent's actions in discriminating against him. The letter from Dr Sandhu contradicted the Applicant's evidence in respect of medication, and on 2 nd January 2001 the Applicant was provided with a sick note for a painful condition of his left forearm. There was no mention of any other condition such as claimed by the Applicant. 19. The Tribunal also know that the Applicant was passed fit to work and to look for work by Dr Sandhu at this time and was actively engaged in doing just that. He had within a short time applied for a dozen jobs. 20. There is also no mention of the Applicant becoming diabetic and having problems with high blood pressure as had also been alleged. Such difficulties as the Applicant encountered were, on his own admission over admission over for him by June and on the Employment Tribunal's observations and findings had been concluded for him some considerable time before that. The Employment Tribunal finds no basis on which to make any award to the Applicant for personal injury as claimed by him. The Employment Tribunal does not consider there was any basis for such an application to be made to it."
[13]The Tribunal then turned to consider what award for injury to feelings they were going to make, having thus dealt with the evidence; and they said this:
"21. The Applicant was discriminated against by the Respondent but the distress and humiliation this caused to him can be reflected in the award for injury to feelings which the Employment Tribunal will make in this case. 22. This was a case with a short period of employment of seven weeks. The information given to the Tribunal at the hearing as to merits was that the Applicant had changed his employment frequently in the period leading up to securing his job with the Respondent. The Respondent's conduct was not, the Employment Tribunal find, motivated by malice or by a deliberate flouting of legislation. The Respondent had offered the Applicant continuing employment although on unsatisfactory terms. The Applicant was back in work within just over one month. The Employment Tribunal taking account of all that it is heard consider that any award in this case must be at a low level bearing in mind the factors it has set out above and the overall circumstances of this case and awards the Applicant £1,750 for injury to feelings."
Then they went on to calculate interest.[14]Mr Crosfill, on behalf of Mr Khan, and Mr West, on behalf of Priority, agree and correctly agree that we should not interfere with the Tribunal's award for injury to feelings unless:(1) The Tribunal has misunderstood the facts or proceeded on the basis which was contrary to the evidence or(2) We are satisfied that the award what was a wholly erroneous estimate of the injury to feelings suffered by Mr Khan and thus amounted to an error of law. To put the relevant question arising out of the second way in which we might find this decision to be one with which we could interfere the relevant question is as expressed in the decision of the Employment Appeal Tribunal in ICTS (UK) Ltd v Tchoula [2000] IRLR 643 at paragraph 14. Did the award fall outside the permissible bracket?[15]While the points are taken in the reverse order in his skeleton argument, perhaps prompted by us Mr Crossfill has submitted, firstly, that the Tribunal did proceed on a basis which was contrary to the evidence. He submits that the Tribunal were wrong to conclude that there was no evidence of Mr Khan's suffering from psychiatric illness as a result of the discrimination. He does not suggest that the Tribunal ought to have made a separate award for personal injuries; he accepts that it would have been right, in the circumstances of this case, for the Tribunal to take account of such illness in their award for injury to feelings; but he submits that the Tribunal approached this case and their evaluation of the appropriate award for injury to feelings wrongly because they excluded any element for psychiatric illness, contrary to the evidence. We have already read out paragraph 18 of the Tribunal's decision; in that paragraph the Tribunal stated that there was no medical evidence of Mr Khan's suffering from a psychiatric illness or damage as a result of the discrimination. Mr Crossfill submits that the Tribunal were wrong in saying that because Dr Sandhu's letter was medical evidence that Mr Khan was suffering, albeit perhaps not for an extended period, from the psychiatric illness of depression.[16]We do not regard Dr Sandhu's letter as amounting to such evidence. In our judgment the Tribunal would have been and were entirely correct to have construed that letter as not amounting to evidence of a clinical illness. Even if the Tribunal had been wrong, at the very highest the words used by Dr Sandhu were ambiguous and were unexplained in a situation in which it was for Mr Khan to prove any illness on which he sought to rely.[17]Secondly, Mr Crossfill says that the Tribunal erred in finding that Dr Sandhu's letter contradicted Mr Khan's evidence in respect of medication. He says that the letter clearly supports Mr Khan's evidence in that respect or at least is ambiguous.[18]We do not regard the Tribunal as having made any error in this area at all. The letter from Dr Sandhu does not say that he offered medication which he would not have offered if he did not think it was needed or which was appropriate and that such offer was rejected. He says in his letter that Mr Khan did not need any medication. To us, as to the Tribunal, the meaning of those words is clear; but again if there was any ambiguity it was for Mr Khan's side to explain that ambiguity if it was capable of being explained in Mr Khan's favour.[19]Thirdly, Mr Crossfill criticises the Tribunal's finding in paragraph 20 of their decision, that there was no basis on which to make any award to Mr Khan for personal injury. He submits that Mr Khan's evidence was evidence on which such an award could and should have been made and Mr Khan's evidence was not expressly rejected. Mr West's response is that the Tribunal, having found Mr Khan's evidence to be unreliable in relation to financial loss, took the same view of his evidence in relation to injury to feelings and illness caused by the discrimination.[20]In our view there is ample material within this decision to demonstrate that the Tribunal did not accept Mr Khan's evidence as to physical or psychiatric illness or, in full, his evidence as to the injury to feelings overall that he had suffered. In paragraph 18, to which we have already referred in respect of an earlier argument, the Tribunal found that Dr Sandhu's letter contradicted Mr Khan's evidence as to medication. In paragraph 20 the Tribunal pointed out that the medical evidence did not support Mr Khan's account in relation to the complaint of diabetes and high blood pressure. In the same paragraph the Tribunal found that the difficulties caused by the discrimination were over some considerable time before the time at which, according to Mr Khan's account, he had recovered. And, in our judgment, the sentence on which this argument is founded 'the Employment Tribunal finds no basis on which to make any award to the applicant for personal injury' is in itself a finding which went beyond the earlier conclusions as to the medical evidence. It was a finding that there was no evidence which the Tribunal accepted as to personal injury and a clear rejection, albeit expressed in diplomatic and careful language, of Mr Khan's account of personal injury. Thus, we do not see any error of law in the approach which the Tribunal took and in the findings which the Tribunal made about personal injury, psychiatric or otherwise.[21]Mr Crossfill further submitted that the Tribunal had approached this case on the basis that, because Mr Khan was fit to work from 2 January, he could not have been suffering from any injury to his health or indeed substantial injury to feelings from that time on. In our judgment the Tribunal made no such mistake. Of course, the facts that Mr Khan was fit to work within three weeks or so from his dismissal and only a week or so from the date on which his sick pay came to an end at the expiry of his two weeks of notice were facts which the Tribunal were entitled to take into account and plainly did take into account in deciding whether there was any psychiatric illness or other illness and in deciding on the nature and extent of the injury to feelings. We do not see anything in this decision which suggests that they approached the history of Mr Khan's ability to return to work and his eventual return to work on any other basis or that they evaluated the appropriate award for injury to feelings on the basis that he could not be suffering from any such injury or from any illness because he was fit to return to work when he was.[22]Accordingly, in our judgment the Tribunal made no error in law in approaching quantification on the basis that there was no psychiatric or other injury or illness caused by the discrimination other, of course, than injury to feelings. Mr Crossfill further submitted that the Tribunal had failed to have regard to or make any findings as to the unchallenged evidence as to Mr Khan's emotional state following his dismissal and had erred in applying an objective test as to his emotional condition following his dismissal or gave no reasons why they rejected his unchallenged evidence. So far as the latter is concerned we have already dealt with that. The Tribunal's decision, in our judgment, shows amply both that they rejected his evidence in large measure and why they did so. We see no basis for concluding that the Tribunal applied an objective test rather than assessing what Mr Khan had in fact suffered. The argument as to the application of an objective test was based largely, if not wholly, on the argument that the Tribunal had erroneously elevated his return to work or his ability to return to work on 2 January to a status which it did not deserve; and we have dealt earlier with that point. As to the Tribunal having failed to make any findings as to or have regard to the unchallenged evidence of Mr Khan as to his emotional state, having rejected Mr Khan's evidence as to psychiatric illness and other illness and his evidence as to the length for which the injury to his feelings continued, the Tribunal at paragraph 21 proceeded to accept that he had suffered from distress and humiliation which they proposed to reflect in their award for injury to feelings. They did not refer in terms to his specific evidence as to the difficulties which he experienced over Eid and over Christmas; but there is nothing to suggest that they did not take those matters fully into account. In paragraph 22 they said that they had determined on the amount which they expressed taking into account all the factors which they had set out above and the overall circumstances of the case which included, of course, those parts of Mr Khan's evidence which had not been rejected in the manner which we have described.[23]We have now dealt with all of Mr Crossfill's arguments related to the specific findings which this Tribunal made and the specific evidence which was before them. We turn then to the second way in which this appeal has been presented, namely that the award is in any event outside the proper bracket. Mr Crossfill accepts that this was a case within the lower rather than the higher of the brackets of the categories of award identified by the Employment Appeal Tribunal in the case of Tchoula . He submits, correctly in our view, that today the lowest award for injury to feelings is likely to be in the area of £750 and that the top of the bracket of awards for those cases which fall in the lower category is about £10,000. It is accepted by Mr West that it is not sufficient for the Respondents to argue and they do not seek to argue that, as long as the Tribunal put the case correctly into the higher or lower category the Tribunal are not then subject to appeal wherever they make their assessment within the bracket applicable to that category. The decision of the Employment Appeal Tribunal in Doshoki v Draeger Ltd [2002] IRLR 340 , with which we respectfully agree, makes it clear that the range of awards in the lower bracket is too wide for the Tribunal to be able to be free from any criticism as long as they put their award correctly into the lower category. Otherwise, to take an extreme case, an award of £1000, in a case in which the Employment Appeal Tribunal were to regard the proper award as £9000, would be unchallengeable, and that cannot be the law. Thus far, we agree with Mr Crossfill as to the approach we should take to his argument that this award was outside the proper bracket and should be within the bracket, as he put it to us, of £4000 to £7000.[24]In support of his argument that that was the correct bracket to this case, Mr Crossfill put before us a number of cases which he used, wholly properly as an advocate, in a manner similar to that adopted commonly in personal injury cases where citations are made from Kemp and Kemp on Damages , to persuade us that his proposed range was correct and that the Tribunal award here was well below the appropriate bracket.[25]Three of those cases, Robinson , Kerrigan and Forder , were cases taken from a collection of discrimination awards assembled together in a text book dealing with remedies, we think in discrimination cases but it may be in employment law cases generally, using a similar method to that used in Kemp and Kemp . Those three cases were all decisions of the Employment Tribunal and were not so far, as is relevant, subject to review by the Employment Appeal Tribunal. In one, there was an award of £4000 for injury to feelings, in the second an award of £4500 and in the third an award of £5000 with a further £2500 for aggravated damages. But all of those cases were, in different ways, substantially more serious in terms of duration and degree of discrimination and/or injury to feelings thereby caused than the present case when one removes from the present case Mr Khan's overstatements. The extracts from the text book which Mr Crossfill has put before us are accompanied by a table which mentions numerous other Tribunal decisions by name, describes them in very general term by type and gives the awards made in each case. It is plain that, in a number of cases in which compensation for injury to feelings has been awarded where there has been disability discrimination which included dismissal, an award has been made at a low level. One's eyes fall for instance on a case in which an award was made at £750 in 1999, of £1000 in 1997 and another one of £2000 in 1997. On the other hand, there is a case of disability, failure to make reasonable adjustments and dismissal in which the award was £15000. Each case plainly turns on its own individual facts; and it is very difficult to derive any real guidance from the list or indeed from the decisions which are not, and to do Mr Crossfill justice, are not suggested to be in any way directly comparable on their facts to the present case.[26]In Doshoki , to which we have already referred, the Tribunal had awarded £750 for race discrimination. The Employment Appeal Tribunal held that that award was outside the appropriate bracket and that the appropriate sum of compensation was one of £4000. The Tribunal had, in that case, found that Mr Doshoki's colleagues had over a number of months and on a number of occasions, made racially specific remarks and taunts which had had the effect that Mr Doshoki was being ridiculed in public and that the employers had done nothing about it. We regard that as a case in which the employee was exposed to discrimination of a different nature and of a different degree of offensiveness from that which was proved in this case.[27]In this case the Tribunal found, as they were entitled to do, that the job which Mr Khan had with Priority was a short term job. It was not long term career employment, as had been the case in at least two of the three Tribunal decisions to which we were referred by Mr Crossfill, that is to say Kerrigan and Forder ; the length of employment in the third case, Robinson , does not (at a quick glance) appear from the material put before us. The employment in this case started on 23 October. Mr Khan went off work sick on 28 November and was dismissed on 11 December. The Tribunal found he had a history of changing his job frequently before he had become employed by Priority. So this was not the case of a man who expected the employment he obtained to be the employment for the rest of his career to be long in duration. While he was both discriminated against while employed and by his dismissal as the Tribunal recognised this was not a case, as the Tribunal found, of the deliberate flaunting of legislation. Mr Khan complained to his doctor about injury to feelings, that is to say sadness with signs of depression, once and once only. Three days after the dismissal he was counselled he did not need medication and there was no further such complaint. He was able to look for work from 2 January. He applied thereafter, to his credit, for a dozen jobs in a short time and got full-time work to start on 15 January. After 2 January, he made no further complaint of sadness or symptoms of depression and he recovered from his difficulties, as the Tribunal found considerably earlier than he had been prepared to accept in his evidence. There is nothing to show the Tribunal failed to take into account fully what remained of his evidence after the rejection of that part of his evidence to which we have referred earlier in this judgment.[28]This was not on any view a serious case. We do not agree that a proper award would have been and should have been in the £4000 to £7000 bracket. While perhaps an award of £1750 was on the low side we do not regard it as so low as to be manifestly outside the appropriate bracket for the particular facts of this case or as to amount to an error of law.[29]Accordingly, for the reasons we have set out this appeal is dismissed.