MR W AL JUMARD v CLYWD LEISURE LTD & OTHERS [2008] UKEAT 0334_07_2101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0334_07_2101Case No Appeal No. UKEAT/0334/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR W AL JUMARDAPPELLANTCLYWD LEISURE LTD & OTHERSRESPONDENT
Before
Mr Justice EliasDate 21 January 2008
[1]APPEARANCES For the Appellant MR J ROBERTS (Representative) For the Respondent MR M WEST (Representative) SUMMARY RACE DISCRIMINATION: Injury to feelings DISABILITY DISCRIMINATION: Compensation Appeal against Tribunal's approach to compensation for injured feelings where there were separate findings of race and disability discrimination. Held that the Tribunal had adopted too broad brush an approach in simply fixing a sum without any consideration of the different forms of discrimination. Where different forms of discrimination arise out of the same facts, a single award for injury to feelings is justified. But where there are specific acts which fall into one category but not the other, they should be separately assessed. At the end of the exercise the Tribunal must look at the total figure in the round to ensure that it is proportionate overall and does not involve double counting. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) This is an appeal brought by the employee, who as Claimant before the Employment Tribunal successfully established that he had been subject to unfair dismissal, disability and race discrimination, and victimisation discrimination. He complains that the Tribunal erred in the way in which it approached the issue of compensation. The background[2]It is necessary just to sketch out the case on the substantive merits before considering the appeal. The Claimant (as we will continue to call him) is an Iraqi by birth, with British nationality. He was duty manager at the Nova Centre at Prestatyn. He was disabled, having a hip problem. He had been troubled by this for most of his working life, and was a disabled badge holder.[3]For many years he was employed by Prestatyn UDC but following a transfer of undertakings his employment was transferred to the respondent company in 2001. He is the holder of a number of teaching, coaching and management certificates, all related to the training of lifeguards and teaching swimming.[4]In early 2004, the Claimant alleged that the manager of the Centre, Mike Summersgill, had discriminated against him in various ways. There were a number of incidents which the Claimant submitted demonstrated that he was being treated less favourably than other white members of staff. He raised grievances about his discriminatory treatment. A report was produced by the Finance and Administration Manager, but his grievances were not substantiated. Indeed the Claimant was seen by the Chief Executive, Mr Eldred, and was given what was described as "a verbal lashing" by management.[5]The Claimant appealed and the appeal was considered by a panel of directors. Certain criticisms were made of Mr Summersgill, but the panel concluded that the allegation of discrimination could not be substantiated because the record keeping was so inadequate that it was impossible to determine the facts with respect to the incidents raised by the Claimant.[6]The panel did, however, comment on one particular incident when, in May 2002, the Claimant had been warned for setting off the alarm. He said that there was only a short period allowed between setting the alarm and getting off the premises. As a disabled person, he found it difficult to meet the time scale. The appeal panel recommended that the system be amended to allow a longer period, but in fact nothing was done.[7]The next significant incident which gave rise to disciplinary action against the Claimant arose when he refused to sign a receipt which was designed to demonstrate that he understood certain instructions about how to give refunds on the till in the restaurant. This request was made by a Ms Walmsley. He refused to sign the receipt because he said that he did not, in fact, know what to do. There were apparently raised voices and the Claimant had a tape recorder with him, as it seems he was in the habit of taking it around with him, and he recorded the conversation. When Ms Walmsley realised this she walked away.[8]Seven days later he was suspended. The evidence before the Tribunal was that Ms Warmsley had, in fact, not objected about this but had been told to complain by Mrs Joyce, who was the PA to the Chief Executive, Mr Eldred. It was alleged that the Claimant had both unlawfully recorded the material and also that he had behaved aggressively. He admitted to the recording but said that it had not been done secretly, and he denied that he had displayed aggressive or intimidatory behaviour. He asked the investigators to listen to the tape so that he could demonstrate that.[9]Following the investigation there was a disciplinary hearing on 25 August 2004, when Mr Eldred as Chief Executive was present, along with Mr Ian Turley, who was the investigating officer in the case. The panel refused to hear the tape recording. The Claimant submitted that he made the tape of the conversation because he believed he was being monitored and he felt it necessary to protect himself. The panel concluded that there was gross misconduct.[10]However, they were not proposing to dismiss because of the Claimant's long service. Instead he was given a final written warning, which was said to be indefinite. That, as the Tribunal noted, was in breach of the company's own disciplinary policy which allowed a two-year written warning at the final stage.[11]In addition, the Claimant was moved to a different Centre, the Sun Centre, from the Nova Centre, on a redeployment basis.[12]The Claimant appealed this decision. He submitted that the panel had acted unfairly in not listening to the tape; that the penalty was far too severe; and that it was inconsistent with similar conduct committed by others.[13]An appeal was heard on 6 October 2004. The appeal panel upheld the earlier decision, save that it set a three-year limit to the final warning. They considered it justified not to listen to the original tape. The Tribunal noted that neither panel allowed the Claimant to challenge the assertion that the taping had been carried out in secret; it was his case that it was always done perfectly openly.[14]The Claimant did move to the Sun Centre, but that Centre only opened in the summer. He was there for eleven weeks. When it closed for the autumn he moved to the Bowl Centre, as duty manager. This supervisor was on a lower grade than he was. The Tribunal found that he had to undertake menial and demeaning tasks every day.[15]The Claimant found certain difficulties in the work he was carrying out at the Bowl Centre, not least because it involved standing for certain periods of time. His disability seemed to be getting worse.[16]He approached the acting occupational health officer for Denbighshire County Council who wrote to Ian Turley, the Operations Manager, notifying him that the Claimant almost certainly had a disability as defined by the Disability Discrimination Act 1995 . He said there was a duty on the employer to identify and accommodate reasonable adjustments and job modifications. He suggested that a chair should be provided; that the Claimant should take regular breaks, and that there should be a reduction in carrying heavy items.[17]The Tribunal found that this advice was not, in fact, acted upon notwithstanding that management knew that the Claimant was disabled.[18]On 14 January 2005 the Claimant obtained a medical report from his own consultant, following doubts expressed about whether he really was disabled. He gave it to Mr Turley and in this report it was again stated that he should not stand, should only do light duties and should avoid lifting anything heavy.[19]Subsequently at a review the Claimant identified tasks which he was finding difficult, giving a specific list of duties which caused him discomfort and pain. Again, the Tribunal found that nothing was done.[20]Then in April 2005 there was an incident over the rota. The Claimant attended work because that was what the rota appeared wrongly to require. He was then criticised for having done so and was told that it was his own fault. There was a heated exchange with his superior, Ms Mitchell, and she was upset as a consequence.[21]There was an investigation alleging that he had been aggressive towards a work colleague. Ms Mitchell did not, in fact, wish to make a complaint and said so. However, the disciplinary hearing went ahead. It was initially delayed because of stress being felt by the Claimant.[22]The Claimant then lodged his tribunal claims for disability and race discrimination. That led to surveillance of his behaviour, some members of management thinking apparently that his sickness might not have been genuine. He was followed by a private detective and was found cleaning his car and using equipment in the gym. As the Tribunal noted, there was nothing untoward about the latter. The Claimant had been doing that for some 33 years, during which he had had this disability.[23]A qualified orthopaedic consultant then gave an opinion on the report produced by the surveillance detective. He described the exercises as appropriate and confirmed that the Claimant was disabled. Notwithstanding this, Mr Turley unilaterally concluded that the Claimant was making false claims for sick pay and that this was gross misconduct. This complaint was then added to the matters which would be the subject of a disciplinary hearing. The Claimant was not well enough to attend that hearing but it was concluded that he was guilty of both aggressive and unacceptable behaviour towards a manager, and also deliberate falsification of absence reporting records.[24]An appeal was lodged, but failed. The appeal panel also considered a grievance raised by the Claimant that he had been victimised and was subject to race and disability discrimination. They felt that the company had made reasonable adjustments and that only discrimination claims were rejected. The Tribunal's conclusions[25]In the light of these facts the Tribunal concluded that the Claimant had been unfairly dismissed, there had not been a fair investigation, which was particularly important, given that allegations of dishonesty were being advanced. Indeed, the justification for alleging fraud was virtually non-existent.[26]Then they found certain claims of disability discrimination were made out. The first was in May 2002 when the Claimant had received written notice for setting off the alarm at the Nova Centre. The Tribunal considered this to be both direct disability discrimination, since others were not disciplined for similar security lapses and was also a continuing act of failure to make reasonable adjustments. The delay was because of his disability; he found it difficult to get out within the allocated time and yet nothing was done to extend the requisite period.[27]Then the Tribunal concluded that there were other acts of discrimination following the disciplinary hearing in 2004. First, there were no attempts to make any reasonable adjustments when he was transferred to the Sun Centre, and even more significantly, none when he was transferred to the Bowl Centre, notwithstanding the two health reports and the fact that he had given a list of activities which he found difficult to carry out without adjustments. Apparently the employers thought that they should treat everyone the same.[28]The Tribunal also considered that the decision to adopt the surveillance procedure amounted to an act of direct disability discrimination.[29]The Tribunal then made their findings with respect to race discrimination. They found a number of acts of direct race discrimination. One was the incident when a warning was issued following setting off the alarm. Other white European staff had done similar things but not received letters of warning and there was no satisfactory explanation for the difference in treatment. Also it was racially discriminatory that when the Claimant made a complaint about Mr Summersgill it led to him being told that his own conduct would be monitored and he was given what was in effect a severe dressing down whereas Mr Summersgill himself, whose behaviour had clearly been inappropriate, had not been disciplined at all.[30]Similarly, the Tribunal considered that the incident relating to the unlawful taping and aggressive conduct towards Ms Walmsley demonstrated race discrimination. It was handled unjustly and differently than on other occasions when similar aggressive behaviour by others was ignored.[31]The Tribunal considered that the surveillance was also racially discriminatory. A white woman who had been absent was treated differently and according to the Tribunal that gave rise to a prima facie case of discrimination which the employers did not rebut in the evidence they gave.[32]Finally, the act of surveillance was also treated as an act of victimisation on grounds of both race and disability. It was accepted by the management that the principal reason for this was that the Tribunal proceedings had been initiated. As we have indicated, they also found this conduct independently to amount to both race and victimisation discrimination. The remedy[33]The Tribunal then turned to the question of remedy. The Tribunal first considered the question of unfair dismissal. The only area of complaint here relates to the basic and compensatory award. The Tribunal considered that the Claimant had contributed to the extent of 20 per cent to his own dismissal by what it termed a "history of conduct which at best can be described as less than ideal and at worst can be described as difficult to manage". They say that he himself admitted he loses his temper easily and that he may sometimes be seen as being aggressive, even when he does not intend that; so basic and compensatory awards were reduced accordingly.[34]The Tribunal then considered the discrimination claim under one head. They said this at para. 67:
"The discrimination claims. There are a number of heads of loss claimed. Non-financial loss:- injury to feelings and stress as a direct result of the discrimination at work. We found the claimant was distressed, frightened and under threat from 13 December 2003 following a series of incidents which the claimant listed. Mr Eldred's meeting with him left him under threat from then until his dismissal in November 2005. The injury to feelings and stress escalated as the situation developed. He ended up with an extended unlimited warning, later changed to a three year final warning. He was moved, told he was being monitored, no monitoring carried out, no improvement in his conditions, a cloud remained over him, he is disabled and was caused stress by the lack of attention paid to his need for reasonable adjustments. He was subsequently dismissed. We considered which of the 3 categories set out in Vento v Chief Constable of West Yorkshire [2003] ICR 318 to use. We took account of the fact that the claimant was on anti-depressants for eighteen months, he is now recovered, and he is no longer taking them. Mr West suggested the case fell within the middle band – towards the top end. We agree. For the injury to feelings and stress suffered for the racial and disability discrimination, which occurred over a period of some 20 months, we award £13,000.00."
[35]It is to be noted, however, that they made a separate award of compensation for personal injuries resulting from the pain and suffering which was exacerbated by the failure to make adjustments. There was an order for £5,000. with respect to that. In addition, they awarded £1500 for aggravated damages. They also made substantial awards for future loss and pension loss. None of these are the subject of appeal.[36]The total amount of damages awarded before interest was £116,547. In calculating interest they commented that "injury to feelings commenced on 13 December 2003", that being, according to the Tribunal, the first discriminatory act relevant to the issue. The grounds of appeal[37]There are five distinct grounds of appeal. The first is that the Tribunal was wrong to treat injury to feelings in a composite way. This, it is said, has caused the Tribunal to make a smaller award than they would have done had they adopted a more precise analysis. More specifically, it is alleged that the Tribunal ought to have considered race and disability discrimination separately; that they ought to have distinguished between the different forms of disability discrimination; and indeed that they should have identified each and every separate incident which they found to be discriminatory and allocated compensation for injury to feelings to each.[38]Second, it is said that given the number and range of the allegations upheld, a proper application of the principles laid down in the well known case of Vento , to which the Tribunal made reference, would have required compensation for injury to feelings in the highest bracket with respect to each of these different forms of discrimination.[39]Third, it is alleged that the Tribunal erred in saying that interest should run from December 2003 because the Tribunal had identified the first act of discrimination as occurring in March 2002.[40]Fourth, no separate award of damages was made for the victimisation discrimination, notwithstanding the finding that such discrimination had occurred.[41]The final ground of appeal is directed to the finding that compensation should be reduced by 20 per cent for contributory fault. It is submitted that there was no evidence to suggest that the Claimant was aggressive; the Tribunal was wrong to say that he admitted to losing his temper easily; and furthermore they found that he had undertaken the demeaning manual work without complaint. Full compensation should have been awarded.[42]The company submits that each of these findings was perfectly in order. In particular, the Claimant did not lead any evidence as to the extent to which any injury to feelings was referable to race rather than disability and vice versa, and without such evidence, the distinction was impossible to draw. Moreover, the Tribunal has stated that it was bearing in mind both forms of discrimination when fixing the remedy. It should be assumed that they had done what they said. In any event, the amount they fixed was plainly an appropriate sum for the overall injury to feelings in this case.[43]As to the question of victimisation, whilst this was a separate liability, it did not identify a separate head of loss. The Claimant can be compensated for monetary loss, personal injury and injury to feelings. There was no additional loss referable to the victimisation discrimination.[44]The finding of 20 per cent contributory fault was manifestly justified given the finding of fact that the Claimant himself was aggressive. This was correctly applied to unfair dismissal only. It was not applied to the discrimination claims. There was evidence justifying the Tribunal to reach that conclusion, and accordingly no point of law arose. Reliance was placed on the case of Maris v Rotherham Corporation [1974 ICR 435 in which the National Industrial Relations Court (Sir Hugh Griffiths presiding) emphasised that when considering contributory fault a tribunal should have regard to all the circumstances surrounding the dismissal and not just factors which contribute to the unfairness. Conclusions Injury to feelings[45]We first deal with the grounds relating to injury to feelings. The essential principles are set out in the Vento case, which was considered by the Tribunal. That fixed compensation at between £15,000 and £25,000 for what the Court termed the most serious cases, such as where there was a lengthy campaign of discriminatory harassment, and between £5,000 and £15,000 for serious cases falling short of the highest band.[46]In the course of giving judgment of the Court, Mummery LJ emphasised that the purpose is to compensate and not penalise and that feelings about the conduct of the wrongdoer should not increase the award; that awards should not be so low as to diminish respect for the anti-discrimination legislation, nor so excessive as to give unmerited and untaxed riches; and that there must be public respect for the awards made.[47]The Court also emphasised that since there is no medium of exchange for non-pecuniary losses, and the subjective nature of injury to feelings is so hard to measure, that the sum awarded is inevitably somewhat arbitrary. As a result of these considerations (para. 51):
"..an appellate body is not to be entitled to interfere with the assessment of the Employment Tribunal simply because it would have awarded more or less than the tribunal has done. It has to be established that the tribunal has acted on a wrong principle of law or has misapprehended the facts or made a wholly erroneous estimate of the loss suffered. Striking the right balance between awarding too much and too little is obviously not easy."
We bear that injunction fully in mind. The exercise is very difficult and no two tribunals would come up with the same figure.[48]However, we do accept that the argument advanced by Mr Roberts, who represented the Claimant, that in this case the Tribunal ought to have considered the two elements of race and disability discrimination separately. We recognise that where more than one form of discrimination arises out of the same facts, it can be artificial and unreal to ask to what extent each discrete head of discrimination has contributed to the injured feelings, and there will be no error of law where the Tribunal fails to do that. We respectfully agree with the decision of the EAT (Morison P presiding) in Khanum v IBC Vehicles Ltd [1999] UKEAT/685/98 para. 17 to like effect.[49]Of course, where discriminatory heads overlap, it is not simply a case of treating both forms of discrimination wholly independently and then adding the sum for each; the degree of injury to feelings is not directly related to the number of grounds on which discrimination has occurred. It may be, for example, that a tribunal takes the view that the injury to feelings in, say, a case of race and disability discrimination is not materially different from the injury that would have been experienced had it been race alone.[50]However, where, as in this case, certain acts of discrimination fall only into one category or another, then the injury to feelings should be considered separately with respect to those acts. Each is a separate wrong for which damages should be provided. Apart from that, it will help focus the Tribunal's mind on the compensatory nature of the award. We would suggest for example, that it would not at all follow that the level of awards should be the same for different forms of discrimination. The offence, humiliation or upset resulting from a deliberate act of race discrimination may quite understandably cause greater injury to feelings than, say, a thoughtless failure to make an adjustment under the Disability Discrimination Act .[51]Having said that, the courts have emphasised on a number of occasions, not least in Vento itself (para. 68), that at the end of the exercise the tribunal must stand back and have regard to the overall magnitude of the global sum to ensure that it is proportionate, and that there is no double counting in the calculation.[52]We are fortified in this conclusion that the two forms need separate consideration by the decision of the EAT (Burton P presiding) in Birmingham City Council v Desmond Jaddoo (UKEAT/0448/04). In that case a tribunal fixed compensation for injury to feelings in a case involving both race and disability discrimination at £20,000 and said that it would have awarded £10,000 for each. This approach was held to be unlawful because there had been no adequate consideration as to whether the same sum could be justified under each head of discrimination; there was no consideration of whether the two sets of discriminatory treatment were of equal seriousness. Indeed, on the facts of that case the EAT noted that some acts of discrimination may not have caused any injury to feeling at all.[53]Similarly, we think that the Tribunal was obliged to have regard to the victimisation claim and to consider whether it justified any separate head of loss. Since the Tribunal found that this act constituted race and disability discrimination in any event, it might properly come to the view that any further injury to feelings would be nominal. But in our view the issue needed to be addressed.[54]We do not think, however, that it was necessary or in this case desirable to fix a separate sum for the injury to feelings flowing from acts of direct disability discrimination and the failure to make reasonable adjustments respectively, although it would not necessarily be wrong for a tribunal to do that in an appropriate case It is, however, important that the tribunal keeps firmly in mind that there are the different forms of disability discrimination, and they may contribute in different measure to any injury to feelings because, as we have said, the extent to which feelings are injured is not necessarily the same for each category of discriminatory act.[55]Nor do we accept that there should be some artificial attempt to assess loss by reference to each and every alleged incident of discrimination. That is wholly unreal and would be an impossible exercise. In many cases an act of discrimination, such as failing to give a proper hearing, could be divided up into various sub categories. The exercise would also give a wholly specious objectivity to what is inevitably a broad brush calculation. It is implicit in the Vento case that this is not necessary, and in Tchoula v ICTS (UK) Ltd [2000] ICR 1191 (2101C-1202B) the EAT also concluded that a global view to the question could be adopted.[56]Notwithstanding the errors in the approach which we have identified, we do not say that the figure overall was necessarily or obviously wrong, and we certainly do not think that each of the two claims of race and disability discrimination should, considered separately, inevitably to have been located in the higher bracket, as the Claimant argues. As we have emphasised, in any event a tribunal has to stand back and look at the global figure and simply adding the compensation for each might well result in a disproportionate sum or involve double counting.[57]Accordingly, whilst we find that the Tribunal has erred in its approach, we do not say that a more precise analysis will necessarily lead to any or any significant, increase in compensation. Nor do we accept that the fact that the compensation is relatively small with respect to each incident demonstrates anything at all. As we have said, that may depend upon how incidents are analysed or categorised. In terest.[58]In relation to the question of interest, the complaint is that the Tribunal failed to appreciate that the first act of discrimination arose out of the warning given in May 2002 when the alarm was set off. It is true that the Tribunal appears to have forgotten that since they fix the first date as at December 2003. It is, however, right to say that the more substantial complaints started in December 2003, as the Tribunal noted. We would been reluctant to refer this matter back to the Tribunal had it been the only complaint, but since the other issues are being reconsidered, the Tribunal should look at this point also and see if and to what extent it makes any material difference to their analysis. Contributory fault.[59]We reject the appeal on contributory fault. The Tribunal heard this case over a considerable period of time and was in a very good position to assess the witnesses. They formed a view about the attitude of the Claimant which was supported by some of the evidence. He was involved in two separate arguments where two women had found his conduct aggressive and upsetting. As the Maris case shows, the concept of contributory fault is a very wide one. Moreover, in Hollier v Plysu Ltd [1983] IRLR 260, 263 Stephenson LJ pointed out that the Tribunal's decision on this question was "so obviously a matter of impression, opinion, and discretion, that there must be a plain error of law or perversity before an appellate court can intervene". We do not believe that this test is remotely satisfied here. Disposal .[60]We have sympathy for the Tribunal. They gave a very careful decision and in assessing compensation understandably adopted a broad brush approach to the question of loss for injury to feelings. No scientific assessment is possible. But we think that it was a little too broad in its approach, and that notwithstanding the difficulties of fixing injury to feelings, a more nuanced approach was necessary. The losses flowing from the two forms of race and disability discrimination, at least where they did not arise out of the same facts, should have been separately considered, and the Tribunal should have identified whether any separate loss was to be awarded for victimisation discrimination. As we have said, it is for the Tribunal to decide whether and to what extent that affects its actual conclusion.[61]We are fully satisfied, and both representatives agreed, that this should go back to the same Tribunal who can be relied upon to look afresh at this issue in the light of this judgment. If for some reason the same Tribunal cannot be reconvened then the Regional Tribunal Judge will have to send it to another appropriate constitution.

Cited in 1 later judgment