EAT/0206/00 MR F O AYOVUARE v LONDON BOROUGH OF GREENWICH [2002] UKEAT 0206_00_1401

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0206_00_1401Case No Appeal No. EAT/0206/00 & EAT/0339/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
EAT/0206/00 MR F O AYOVUAREAPPELLANTLONDON BOROUGH OF GREENWICHRESPONDENTEAT/0339/00 LONDON BOROUGH OF GREENWICHAPPELLANTMR F O AYOVUARERESPONDENT
Before
Mr Justice BellSir Gavin LairdDate 14 January 2002
[1]APPEARANCES For Mr Ayovuore MR VINCENT ONUEGBU (Solicitor) For the London Borough of Greenwich MR PETER OLDHAM (of Counsel) London Borough of Greenwich Legal Services & Chief Executive Department 29-37 Wellington Street Woolwich London SE18 6PW THE HONOURABLE MR JUSTICE BELL These are appeals by Mr Ayovuare, to whom it is convenient to refer as the Applicant, and the London Borough of Greenwich, the Respondent, against the sums of compensation totalling £45,688.18 awarded by the Employment Tribunal by a decision dated 27 January 2000 in respect of claims for unfair dismissal under the Employment Rights Acts 1996 and racial discrimination by way of victimisation under the Race Relations Act 1976 .[2]Put shortly, the Applicant contends that the award for injury to his feelings as the result of victimisation was too low. The Respondent contends that some of the heads of compensation fall away as a result of, in effect, reversal of the finding of unfair dismissal and of some of the findings of victimisation and that the award for victimisation was in any event too high.[3]The proceedings between the parties have a considerable history which it is necessary to summarise in order to understand the scope of the appeals today. The Applicant is black, of African origin, by his own description. He was employed by the Respondent from 29 June 1987 in its Housing Directorate rising to Assistant Quantity Surveyor with a substantive grade of PO1 from 4 September 1996. In 1993 he brought successful proceedings against the Respondent before what was then the Industrial Tribunal for racial discrimination by way of victimisation. On 27 February 1998 he made a further application (Case 1100342/98) claiming discrimination and victimisation contrary to Sections 1 and 2 of the 1976 Act. In August 1998 he was dismissed from his employment by the Respondent. On 9 September 1998 he made a further application (Case 2303881/98) claiming that since his February 1998 application he had been subjected to further acts of discrimination and victimisation and that he had been unfairly dismissed.[4]All those claims were heard by the same Tribunal over several days between November 1998 and September 1999. The decision of the Tribunal with Extended Reasons dated 24 September 1999 was that, first, the Applicant had not been discriminated against on racial grounds; second, he was victimised contrary to Section 2 of the Race Relations Act 1976; third, he was unfairly dismissed; fourth, he contributed to his dismissal to the extent of 40%; and, fifth, there was to be a future hearing to determine remedies.[5]The Tribunal's decision set out, in paragraph 14 of its Extended Reasons, fifteen numbered allegations by the Applicant of discrimination and victimisation, a sixteenth allegation of unfair dismissal and seventeenth and eighteenth allegations of discrimination and victimisation in respect of his dismissal. The Tribunal found that the Applicant had been victimised but not discriminated against on grounds of race in respect of allegation (4) which involved the Respondent raising a Ms Madani to a salary grade spinal point higher than the Applicant in 1995, allegation (5) which involved a manager, Mike Smith, doubting and investigating the Applicant's associate membership of the Royal Institute of Chartered Surveyors, and allegation (9) which involved two allegations. The first was that a manager, Laurie Browne, high-handedly confiscated papers of the Applicant when he was suspected of doing private work and making private telephone calls and sending private faxes in the Respondent's time and on the Respondent's equipment. The second was that the Respondent failed to deal with the Applicant's complaints against Mr Browne separately from the disciplinary proceedings which the Respondent took against the Applicant in respect of his telephone calls. It found in his favour at paragraph (15) which covered much the same ground as the second allegation in paragraph (9), and on paragraph (16) that the Applicant was unfairly dismissed. The Tribunal rejected all the other allegations made by the Applicant.[6]On 8 October 1999 and 29 November 1999 (in Chambers) the same Tribunal considered remedies. In respect of unfair dismissal it made a basic award of £2,112 and it made a total compensatory award of £19,128.86. For victimisation it awarded loss of earnings for failure to place the Applicant on a higher salary spinal point (that is the Ms Madani matter), including interest, of £1,247.32, and compensation for injury to feelings of £20,000 plus interest at the rate of 8% per annum for two years, making £3,200, which made a total award under all heads of £45,688.18.[7]Appeals were launched by the Respondent against the findings of victimisation and unfair dismissal, and against the Tribunal's decision to hear the Race Relations Act allegations though out of time. The Applicant appealed against the decision to find victimisation but not discrimination. Both parties appealed against the awards of compensation. The effect of two hearings of the Employment Appeal Tribunal and in particular of a decision of the Employment Appeal Tribunal promulgated on 2 March 2001 was that: -(1) the Respondent's appeal was allowed against the decision to extend time to bring the Race Relations Act allegations and the Employment Appeal Tribunal remitted the question of extension of time to a new Tribunal;(2) the Respondent's appeal was allowed against the finding of victimisation in sub-paragraph (4) – the Ms Madani comparison;(3) the Respondent's appeal was dismissed in relation to the finding of victimisation in sub-paragraph (5) – Mike Smith's investigation of the Applicant's ARICS entitlement;(4) the Respondent's appeal concerning the findings of victimisation in sub-paragraphs (9) and (15) was allowed insofar as it related to hearing the Applicant's complaints at the same time as the disciplinary proceedings; but(5) the Respondent's appeal was dismissed in relation to the finding of victimisation in sub-paragraph (9) relating to Mr Browne's conduct in confiscating the Applicant's papers; and(6) the Respondent's appeal was allowed against the finding of unlawful dismissal and the Applicant's contribution of 40% to his dismissal, and both those issues were remitted to a new Tribunal.[8]By a decision dated 16 July 2001 with Extended Reasons the new Employment Tribunal decided, first, that the time limits for the Race Relations Act allegation be extended in respect of victimisation complaints which the Employment Appeal Tribunal had upheld as it was just and equitable to do so; and, second, that the Applicant's complaint of unlawful dismissal be dismissed. The Employment Appeal Tribunal did not have time to deal with the parties' appeals against the figures of compensation awarded in the remedies decision, and in any event it might have been premature for it to do so before the new Employment Tribunal had made its decisions.[9]We now address the remedies appeal. Some matters are clear, as the parties agreed with this Tribunal at the beginning of the hearing of the appeal. First, the awards in respect of unfair dismissal fall away with the ultimate rejection of the Applicant's complaint of unfair dismissal. Second, the award of compensation for loss of earnings arising from victimisation by not raising the Applicant to the same salary spinal point as Ms Madani, sub-paragraph (4), also falls away with the successful appeal against the finding of victimisation in that respect. Third, however, the appeals against compensation for injury to feelings in respect of victimisation are live but stand to be considered in respect of sub-paragraph (5) (the Mike Smith matter) and part only of sub-paragraph (9) (Mr Browne's confiscation of the Applicant's documents).[10]It is convenient against that background to consider how the original Tribunal dealt with the question of remedy for victimisation. As the Tribunal made one global award to cover all its original findings of victimisation it is necessary to consider them all in order to evaluate what remains.[11]So far as sub-paragraph (4), the Ms Madani matter, was concerned the Tribunal found that in 1995 following a job evaluation exercise Ms Madani was advanced to spinal point 37 which happened to be the lowest point in the PO2 scale. Her score was 65%, although the Respondent had insisted that a score of 80% was necessary in order to achieve promotion to PO2. The Applicant had remained on spinal point 35, although he achieved a score of 66% in 1997. The Respondent's case was that Ms Madani's elevation was a simple mistake, but no evidence was called to explain the mistake, and the Tribunal drew the inference that the Applicant had been victimised contrary to Section 2 of the Race Relations Act .[12]In respect of sub-paragraph (5), the Tribunal recorded that at the first Tribunal's hearing in December 1996, where a finding of victimisation was made, the Applicant had produced documentary evidence that he had obtained the qualification of Associate of the Royal Institute of Chartered Surveyors (ARICS). Shortly thereafter he presented the relevant documentary evidence to Personnel and had shown his certificate of qualification to both Mike Smith and Laurie Browne. However, the Respondent failed to accept that he was so qualified. Mr Smith made a direct approach to the Institute asking them for confidential information about the Applicant's application for associate membership. The Institute refused to provide that information without the Applicant's authority. Mr Smith misled the Tribunal as to the basis of his approach to the institute saying that he had only approached it after obtaining the Applicant's authority to do so. On further questioning he admitted that he rang the Institute after he saw the Applicant's certificate and that he did so without informing the Applicant. He decided to investigate the question of the Applicant's qualification because:
"It could have been obtained improperly."
The Tribunal took the view that that was an extremely serious matter. Mr Smith was unable to provide a satisfactory explanation as to why, if he was concerned about the genuineness of the qualification, he did not ask the Applicant for more details. The Tribunal found Mike Smith to be an evasive and unreliable witness who knew that the Applicant had made a number of complaints of discrimination. The Tribunal concluded that Mr Smith was hoping to obtain evidence that would discredit the Applicant as an employee. The Tribunal went on in its finding to say:
"Given the way Mr Smith behaved, we do not believe him when he said that he was genuinely concerned to ensure that proper procedures were followed. We find that the manner in which Mike Smith investigated the validity of the Applicant's ARICS qualification amounted to an act of victimisation because the Applicant had brought proceedings against the Council. We find further that the manner in which Mike Smith acted on this occasion was extremely distressing to the Applicant. He suffered grave injury to his feelings."
[13]In respect of sub-paragraph (9), the Tribunal made findings in respect of the Respondent's decision to hear complaints against Mr Laurie Browne separately from the disciplinary proceedings which were taken against the Applicant. Those were later rejected by the Employment Appeal Tribunal. The finding in respect of Laurie Browne with which this Tribunal is concerned related to Mr Laurie Browne's confiscation of the Applicant's papers. The Tribunal found that the Applicant had been warned on several occasions that he should not make private telephone calls or use the Council's photocopying facilities. He was warned on 23 March 1998. On 23 March 1998 Mr Browne believed that the Applicant was working on private papers and he confiscated the papers as evidence with a view to carrying out an investigation. The Applicant threatened Mr Browne that he would be taking out a grievance under the Council's procedures and he did in due course make such an application. The Tribunal concluded its findings in the following terms:
"We consider that Laurie Browne's action in confiscating the Applicant's private papers was harsh and high-handed. However, we reject any suggestion that Laurie Browne threatened him [the Applicant] with physical assault. We do not find this allegation to be credible. We understand why Mr Browne may have been concerned to obtain evidence that the Applicant was doing private work during office hours. However, we consider that the manner in which he went about it was inappropriate. It seems to the Tribunal that Mr Browne's actions are to be seen in the context of a general management view of a lack of trust in the Applicant following his success at the Gleeson [that is the very first] Tribunal. Management was seeking evidence to use against the Applicant. But for his previous case he would have been treated differently. The Tribunal find that the Applicant was victimised contrary to section 2 of the Act. In reaching this conclusion we have taken into account the entire background and context in which this incident took place. There was a culture of suspicion, antagonism and ill will for which all the managers, not just Mr Browne, must share responsibility. The Applicant's reaction to his culture was in turn one of suspicion and defensiveness which was seen as defiance of his manager. See issue (15)."
Issue or sub-paragraph (15) consisted of a finding that in failing to deal with the Applicant's grievance separately from the disciplinary proceedings, the Applicant was being disadvantaged. The Tribunal found that he was victimised by being denied the benefit of a separate hearing of his own complaint.[14]When it came to considering remedies on the basis of those findings, the Tribunal in paragraph 6(B)(i) repeated that the Applicant had been victimised in relation to what it described as three matters, sub-paragraphs (4), (5) and (9) in the Extended Reasons of its original findings. It went on:
"(i) The Tribunal considered that claims of victimisation are serious from the point of view of public policy. Those who feel that they have justified viable cause to exercise their statutory rights should be protected. Any act on the part of Respondents to deter such complaints and to victimise those who seek to establish their statutory rights must be viewed as serious."
At sub-paragraphs (ii) - (iv) it recorded:
"(ii) In relation to an award for hurt feelings, a Tribunal has to make a factual finding as to whether the very fact that the employers had victimised the employee, itself contributed to the degree to which the employee had been hurt. (ii) The Tribunal found that the Applicant had previously brought successful proceedings for victimisation in Case Number: 60398/93. When the Applicant returned to work, following that decision, the Respondents had not taken adequate steps to afford the Applicant protection from further victimisation. Furthermore, they admitted that the manager who was found to have victimised the Applicant was not dealt with either through the disciplinary procedures or even given any counselling about the Respondent's obligations under the Act and the Code of Practise. The Tribunal find that this knowledge must have been very distressing to the Applicant, particularly given that the individual concerned had taken action which gave the Applicant further cause to consider that he was continuing to be victimised. (iv) We did not consider it appropriate to make an award for hurt feelings separately in relation to each incident. This would, in the Tribunal's view, be wrong in principle because the Applicant had already been upset by the manner in which he had been treated in relation to his first successful application. He then experienced three separate incidents of victimisation. The degree to which he has been upset cannot be separated one from the other. We consider that by the time of the last act of victimisation, the Applicant had already been gravely upset. The most hurtful act was issue no. 5 when his Manager, Mr Smith, investigated his professional qualifications. The Tribunal find that act to be insulting to the Applicant, thereby aggravating his feelings of hurt. The Tribunal find as fact that in the range of awards, this case is well above the mid-point of awards in the discrimination field. …."
The Tribunal then set out the principles to which it had regard. It referred to two leading cases and continued:
"(v) The Tribunal find that the cumulative effect of the three separate acts of victimisation, combined with the fact that the Respondents had previously victimised the Applicant, caused him substantial injury to feelings which had been aggravated by the insulting manner in which his qualifications were challenged. The Tribunal assess this award in the sum of £20,000 to which interest is to be calculated in accordance with the Race Relations (Interest on Awards) Regulations 1994."
The Tribunal considered the question of interest which it was agreed in accordance with the regulations should run at 8% per annum but restricted the period over which it should run to two years, meaning interest of £3,2000. In so doing, of course, the Tribunal was considering matters which went back before the questions of victimisation which remain relating to the conduct of Mr Smith and Mr Browne.[15]Before proceeding to the arguments and our conclusions we should point out that at the beginning of the appeal we discussed with Mr Onuegbu, who acts for the Applicant, and Mr Oldham, who acts for the Respondent, whether, if the appeal was to be allowed, we should remit the matter to a Tribunal to decide what the appropriate figure of compensation for injury to feelings should be, or whether we should assess that figure ourselves. The advantage of us dealing with the matter seemed to us and to the parties to be that the Tribunal which originally assessed the compensation figures did so some considerable time ago and could hardly be expected to remember the detail of the case. Moreover, it would be difficult for that Tribunal to put out of its mind the findings of victimisation which it made which were later reversed by the Employment Appeal Tribunal. The new Tribunal to which some questions were remitted by the Employment Appeal Tribunal did not consider remedies at all. On the other hand, we did not, as the original Tribunal did, hear evidence from the Applicant as to the effect of acts of victimisation on him. The solution to this dilemma, agreed with the parties, was that we should hear Mr Onuegbu, on behalf of the Applicant, summarise the nature of the evidence put forward by the Applicant in relation to his distress and deal with the matter on that basis, with two reservations to which we will come.[16]The information provided by Mr Onuegbu was essentially that at the time of the incidents of victimisation in sub-paragraphs (5) and (9), the Applicant had already been victimised, as an early Tribunal had found, by almost the same department of the same Respondent; that when he continued working he had difficulty working in what was effectively the same environment; that the stress which he suffered affected his health; that he felt extremely humiliated by the investigation of his qualifcations which came at a time when, he said, there was a feeling in the community that many Africans were guilty of dishonesty and forgery; and finally, that his marriage broke down. The very first Tribunal had awarded a relatively modest sum of £2,500 compensation for injury to feelings because the Applicant was able to show them that he got his professional qualification and it was assumed that the Respondent would thereafter treat the Applicant as a professionally qualified man. In those circumstances the investigation of his qualifications was particularly painful to him. He was working, as the Tribunal found, in a culture of suspicion, antagonism and ill will.[17]We work on that basis with two reservations, made, it seems to us, with every justification by Mr Oldham; firstly, that there is no evidence to connect any ill health of the Applicant to the two incidents of victimisation which remain to be considered by us, and, secondly, and equally, there is really no evidence that those two incidents of victimisation caused or substantially contributed to the breakdown of the Applicant's marriage.[18]Against that background Mr Oldham submitted, firstly, that the award of £20,000 was made on a cumulative basis for four instances of victimisation. So, he submitted, if £20,000 was the correct figure on that basis it must be reduced now there are just two incidents of victimisation to be considered. Secondly, he contended that in any event the figure of £20,000 was excessive to the point of being reversible on appeal. He referred us to the case of Tchoula v ICTS (UK) [2000] ICR 1191. In that case the Applicant was awarded £22,000 compensation for injury to his feelings plus £5,000 aggravated damages for incidents which involved, first of all, agents of the Respondent breaking into the property where he was acting as a security guard to find him asleep on duty, which did not happen in the case of white security guards, and secondly, victimising him by taking disciplinary proceedings and actually dismissing him. The Tribunal in that case found that the outcome of the disciplinary proceedings was preordained and that the person who held the disciplinary hearing was consciously motivated to find the Applicant guilty of the disciplinary offence with which he was charged because he had launched a troublesome and detailed claim alleging discrimination. The Employment Appeal Tribunal in Tchoula considered a number of previous awards for injury to feelings. It reminded itself that the Employment Appeal Tribunal should not interfere with a Tribunal's award unless satisfied that it was a wholly erroneous estimate of the damage suffered by the Applicant; that is that the award fell outside the permissible bracket. It came to the conclusion that Mr Tchoula's case fell in a lower category of discrimination so far as injury to feelings were concerned and concluded that the sum awarded by the Employment Tribunal could not stand and that the proper award was one of £10,000 made up as £7,500 for injury to feelings and £2,500 aggravated damages. Mr Oldham contended that Mr Tchoula's case was more serious than Dr Ayovuare's. Thirdly, Mr Oldham pointed out that the Applicant in this case had originally raised a large number of points, only a limited number of which succeeded. Fourthly and finally, he submitted that the Industrial Tribunal had found that the Applicant's case was: "Well above the mid-point." and yet, Mr Oldham said, in 1998 the mid-point would have been about £3,000 and nowhere near any five figure sum.[19]Mr Onuegbu, on behalf of the Applicant, contended firstly, that the 'Mike Smith' matter merited an award in the region of £20,000 on its own. If the Tribunal had given a separate award for each incident of victimisation, he submitted, the total figure would have been well in excess of £20,000. Secondly, he suggested that the case of Tchoula was less serious than this Applicant's case. it was not a question of challenging the hard earned qualifications of a professional man. Thirdly, Mr Onuegbu submitted that the Tribunal was entitled to find that the Applicant's case was: "Well above the mid-point." so that it did not fall into a lower category as Mr Tchoula's case was found to do.[20]We are grateful to both Mr Oldham and Mr Onuegbu for their very helpful, succinct submissions. We have jointly come to the following conclusions, helped by those submissions. In our view the award of £20,000 was substantially too high as compensation for injury to feelings caused by the two incidents of victimisation which we are now considering. That award is closer to the award of £28,500 in the well known case of Prison Service v Johnson [1997] ICR 275 for what was described as an eighteen month campaign of appalling treatment on racial grounds. The figure of £20,000 is also the same as the award in Williams v Southwark Borough Council (Unreported 22 November 1996 a decision of London South Employment Tribunal) where there had been a campaign of harassment by the Applicant's line manager over a period of two years making his working conditions unbearable.[21]The case of Tchoula is not a good comparator for the present case in any precise respect. It differs from the present case in two ways in particular. Firstly, in our view, the victimisation of this Applicant in respect of the investigation of his 'letters' was more serious than the attempt to catch out Mr Tchoula on duty. This Applicant was entitled to be proud of his hard earned 'letters' and to feel humiliated by the unjustified and secretive investigation of them. Secondly, on the other hand, in the case of Mr Tchoula his actual dismissal was found to be based on racial grounds which was not the case in the present Applicant's case. For all those important distinctions however we consider that the present case falls within the same broad band of seriousness as the case with which the Employment Appeal Tribunal was concerned in the appeal of Tchoula and, considering all relevant matters, we consider that the sum of £10,000 is the appropriate compensation for injury to feelings; made up of £7,500 as to injury to feelings itself, and £2,500 aggravated damages or compensation for the "insulting" conduct of Mr Smith and the "high-handed" behaviour of Mr Browne.[22]So far as interest is concerned, the Applicant learned of the victimisation by Mr Smith on 8 August 1997. Mr Browne took his papers in March of 1998. Bearing in mind that the first of those two incidents was, in our view as well as the Tribunal's, the more serious, we consider that it would be fair and just for interest at 8% per annum to run, using a broad brush approach, from the middle of October 1997, making a period of 4¼ years to date. That is 34% which will £3,400 to the £10,000 compensation, making a total award of £13,400 which we substitute for that made by the Tribunal.[23]To that extent this appeal by the Respondent is allowed. It follows that the Applicant's own appeal is dismissed.