BRITISH TELECOMMUNICATIONS PLC v MR A REID [2003] UKEAT 0913_02_0703

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0913_02_0703Case No Appeal No. EAT/0913/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BRITISH TELECOMMUNICATIONS PLCAPPELLANTMR A REIDRESPONDENT
Before
His Honour Judge Prophet Ms S R Corby Mr R N StrakerDate 7 March 2003
[1]APPEARANCES For the Appellant MR P THORNTON (of Counsel) Instructed by: BT Legal Services Post Point LF19 Libra House Sunrise Parkway Linford Wood Milton Keynes MK14 6PH For the First Respondent MR C MAYERS (of Counsel) Instructed by: Mr A Reid 13 Suffolk Road Tottenham London N15 3RN HIS HONOUR JUDGE PROPHET This is the full hearing of an appeal by British Telecommunications Plc ("BT") in respect of a decision by an Employment Tribunal sitting at Watford on four successive days in June 2002, under the chairmanship of Mr N Mahoney, by which there was a finding that Mr Reid was discriminated against on the grounds of race by both BT and a Mr Norman Edwards. Compensation was awarded against BT only, being £6,000 for injury to feelings and £2,000 by way of aggravated damages.[2]The appeal by BT does not challenge liability but only the amount of the compensation. What the Employment Tribunal said about compensation was contained in paragraphs 7 and 8 of their written reasons, as follows: 7 "The Applicant had a very unpleasant time after the 5 November incident and had to suffer the indignity of a disciplinary investigation, which was totally unjustified. His health suffered and he had to have a considerable time off work. He went back to work on 17 April 2001 at St Albans and was transferred to Bletchley on 29 May 2001. He found this stressful and became sick on 30 October 2001. The grievance investigation by Mr Godsafe was not finalised until 12 February 2002. The Applicant therefore had some 14 months while he was waiting for his grievance to be dealt with. 8 In the circumstances, the Tribunal consider that the appropriate amount for compensation for injury to feelings is £6,000. Further, the Tribunal consider that a sum of £2,000 aggravated damages is appropriate, given that the transgressor, the Second Respondent, was not punished, remained in his post and achieved promotion to a position higher than the grade of the Applicant. The Tribunal do not consider it appropriate to make an award of any sum against the Second Respondent. In those circumstances, the First Respondent is ordered to pay the Applicant the sum of £8,000."[3]Mr Thornton of Counsel appears on behalf of BT and Mr Mayers of Counsel appears on behalf of Mr Reid.[4]Mr Thornton submits that the Tribunal took into account matters which they should not have taken into account, which included the indignity of a disciplinary investigation and an indication of Mr Reid's health suffering. Mr Mayers, on the other hand, submits that the Employment Tribunal properly took into account the relevant matters and reached an award which they were entitled to reach.[5]It is of course well recognised that assessing compensation for injury to feelings in race discrimination cases is primarily a task for the Employment Tribunal. This Tribunal would only intervene if that award was well outside an appropriate range.[6]There is a very helpful recent summary of the law on compensation for injury to feelings in discrimination cases in Vento v Chief Constable of West Yorkshire Police (No. 2) [2003] IRLR 102 , where the guidance is set out by Mummery LJ is no doubt compulsory reading today for all Employment Tribunal Chairman and members. Whilst that judgment was not available to the Watford Employment Tribunal, it may be noted that in his judgment Mummery LJ says this:
"Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression etc and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise."
[7]Although the finding of actual race discrimination was in respect of one incident only, it involved very unpleasant conduct by Mr Edwards, which included physical threats and the words "I will get someone to put you back in your cage." It is hardly surprising that the Employment Tribunal took account not only of the inevitable distress to Mr Reid occasioned by that incident, but also what they clearly found to be consequential effects on him.[8]Mr Thornton makes the fair point that the Tribunal's findings do not indicate as clearly as they might the necessary causation, but as the guidance of Mummery LJ indicates, the Employment Tribunal has to see matters in the particular context of the circumstances of each case. It is they who hear all the relevant evidence which enables them to come to their conclusions.[9]On that basis, the sum of £6,000 seems to us to be in no way seriously out of line with a proper assessment by the Employment Tribunal of injury to feelings in this case. Even if the assessment should have been strictly limited to the words used by Mr Edwards, as Mr Thornton submits, £6,000 cannot be a completely unreasonable assessment of an award for the serious race discrimination which those words were found by the Employment Tribunal to imply.[10]Turning now to the second submission of Mr Thornton in relation to aggravated damages, Mr Thornton wants us to quash that part of the appeal. Cases drawn to our attention by him are Armitage, Marsden and H M Prison Service v Johnson [1997] IRLR 162 and H M Prison Service v Salmon [2001] IRLR 425 .[11]Having regard to the guidance in those cases, Mr Thornton says there was no justification for an award of aggravated damages as there was no oppressive or high-handed behaviour by the employer.[12]We can see that the reference by the Employment Tribunal in respect of promotion for Mr Edwards may have been overstating the position so far as justification for aggravated damages is concerned, but what the Employment Tribunal clearly found was a weak approach by BT management in dealing effectively with the transgressor when there was clearly sufficient evidence to indicate race discrimination occurring. In particular, by imposing no sanction whatsoever on Mr Edwards, that clearly exacerbated the situation and added to Mr Reid's distress. We are not able to say the Tribunal was at fault in deciding to add £2,000 for aggravated damages in the particular circumstances.[13]As a final observation in this case, we note that Mr Mayers although opposing BT today, wishes us to know that in his experience BT set a very high standard generally in terms of race discrimination. It may well be, and we are happy to accept, that the conclusions by the Employment Tribunal indicate a one-off situation whereby the standards that BT normally operate unhappily were not met in this particular case.