Appeal No. UKEATS/0036/05/LA

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 19 October 2005

Before
THE HONOURABLE LADY SMITH
MR J M KEENAN
MRS A HIBBERD

JAMES GREIG	APPELLANT

INITIAL SECURITY LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr J Greig
In Person

For the Respondent

	

No Appearance
Nor Representation

SUMMARY

Disability Discrimination. Whether or not damages awarded by tribunal (£500) were insufficient. The Employment Appeal Tribunal upheld the award and dismissed the appeal. 
THE HONOURABLE LADY SMITH

1	This case concerns a claim in respect of disability discrimination.

2	This judgment represents the views of all three members.

3	We will refer to the parties as claimant and respondents.
Introduction

4	This is an appeal by the claimant in those proceedings against a Decision of an Employment Tribunal, sitting at Edinburgh, Chairman Miss FCC Carmichael, registered with Extended Reasons on 17 and 18 February 2005.  The claimant represented himself there and before us and the respondents were represented there by Ms L Davies, solicitor.  They did not appear nor were they represented before us but they lodged written submissions and intimated them to the claimant, in advance of the hearing.

5	The decision of the Employment Tribunal was that the respondents discriminated against the claimant for a reason related to disability and were, accordingly, liable to pay him damages, which they fixed at the sum of £500.   
		
6	The claimant contended that he ought to be awarded a more substantial sum.  He sought an award of £2,500.   
The issues

7	The tribunal having found that the claimant had been discriminated against in relation to his job application, on disability grounds, the remaining issue between the parties was the amount of the appropriate sum to award as compensation.   

The Judgment
8	The Employment Tribunal determined that the appropriate sum to award was £500.  They explained their award as follows:
“The claimant claimed damages for injury to his feelings. He identified the sum of £2,500 as appropriate on the basis that he had been left  “somewhat despondent” by the respondents' “offhand and dismissive consideration” of him.
In assessing compensation in a complaint of failure to recruit, tribunals must look at the various factors including loss of opportunity of employment and whether on the basis of probability the claimant would have succeeded in being appointed to the job but for the discrimination. The claimant admitted he was not well qualified for the post, and that the job was not ideally suited to him. He claimed to have had relevant training, but either that claim was fanciful or he knowingly withheld it from the respondents. There was little likelihood in our view that the claimant would have been recruited to the post even had he not been rejected in the initial vetting, and we therefore make no award for loss of earnings.
On the question of compensation for injury to feelings as a result of the discriminatory acts, it is for the claimant to show injury. There was no medical evidence suggesting it had aggravated his condition, and we assessed the degree of hurt and distress in the circumstances as minor. From 24 May (R41) until 13 July 2004 (R45) he persistently enquired of the respondents by telephone and by letter why he was unsuccessful and had not been invited to interview until the response of 13 July. It contained reasons relating to his disability, which he instantly recognised as discriminatory. He confirmed he had attended a number of tribunal hearings previously as a result of which he had acquired a wide knowledge of the relevant legislation and judicial authorities. It seemed to the tribunal that his application was not made wholly in good faith. We took into account the EAT's suggestion in Sharifi v Strathclyde Regional Council [1992] IRLR 259, that a minimum appropriate award should be £500, and reminded ourselves of the value in everyday life of the sum we had in mind, Armitage, Marsden & HM Prison Service v Johnson [1997] IRLR 162. An award of £500 would represent roughly 2 weeks' pay in the post applied for or equate to the cost of a week's package holiday. Accordingly, we determined having regard to all the circumstances that £500 was the appropriate sum which the respondents shall pay to the claimant.”

The appeal

9	The claimant appealed against that decision insofar as compensation was fixed at £500.   
The legislation 

10	The relevant provisions of the legislation are those contained in: 
“17A.

(2) Where an [employment tribunal] finds that a complaint presented to it under this section is well-founded, it shall take such of the following steps as it considers just and equitable-
(a)	making a declaration as to the rights of the complainant and the respondent in relation to the matters to which the complaint relates;
(b)	ordering the respondent to pay compensation to the complainant;
………………………….
(3) Where a tribunal orders compensation under subsection (2)(b), the amount of the compensation shall be calculated by applying the principles applicable to the calculation of damages in claims in tort (or in Scotland) in reparation for breach of statutory duty.
(4) For the avoidance of doubt it is hereby declared that compensation in respect of discrimination in a way which is unlawful under this Part may include compensation for injury to feelings whether or not it includes compensation under any other head.”
Employment Tribunal Directions

11	 The tribunal directed itself by reference to the relevant legislative provisions.  It also appears to have placed some reliance on the cases of Sharif v Strathclyde Regional Council [1992} IRLR 259 and Armitage, Marsden & HM Prison Service v Johnson [1997] IRLR 162.   
The Facts

12	The facts are in fairly short compass.  The respondents placed an advertisement seeking applicants for a security job in May 2004.  The claimant applied.  He disclosed in his application form that he had not worked since 1980 and that he suffered from depression.   There was no indication in the form that he had any relevant prior experience.  His application was rejected in a sifting process that was carried out by the respondents.  Upon being pressed, the respondents gave written reasons for doing so which were contained in a letter of 13 July 2004:

“We chose not to progress with your application on the following grounds:

•	When reviewing your work history, it shows that you have no relevant experience
•	We believe that we cannot obtain enough information relating to you to meet our vetting standards
•	The nature of the business and the situations you may find yourself in are, we feel, not conducive to your personal mental health as a long-term sufferer of depression.

I trust that these reasons satisfy your enquiry, and would like to state that this matter is now closed and that no further correspondence will be entered into.”

13	In evidence before the tribunal, it was stated on behalf of the respondents that it was assumed that the nature of the job would not be conducive to the claimant’s health.  In these circumstances, they were found to have discriminated against the claimant on grounds of disability and to have had no justification for doing so.   The claimant accepted, however, that he was not well qualified for the post and that the job was not ideally suited to him.   It was concluded that there was little likelihood of him being successful in the job application even if there had not been any discrimination against him.   Further, as we have noted, the tribunal concluded on the evidence that the claimant’s job application was not made wholly in good faith.   
Claimant’s case

14	The claimant submitted that £500 was far less compensation than was appropriate.   Firstly, he submitted that the tribunal had erred in law in fixing compensation at £500 because they had not found that his injury was the very slightest injury to feelings.   £750 was, it was said, the award that was due in respect of the very slightest injury to feelings and the absence of any such finding in his case meant that he should have been awarded more.   

15	In support of his submission that £750 was due in respect of the very slightest injury to feelings, the claimant referred to the case of Purves v Joydisc Ltd, a decision of Sheriff Principal MacPhail, as he then was,  dated 25 February 2003.   

16	Secondly, the claimant submitted that the tribunal had erred in law in leaving out of account the need to consider the question of public respect for the award.   He could not find any reference to their having done so and that meant that they had failed to do so.   He did not rely on any authority for his second submission.

Overall, the claimant submitted that the award should have been £2,500, a figure which he agreed seemed high but could, he said, be justified when account was taken of the fact that the discriminatory act was communicated directly to him by letter.   

Respondents’ case

17	On behalf of the Respondents it was contended that there was no error in law.   It was not surprising in the circumstances that the tribunal was not inclined to award such an undeserving case any more than the absolute minimum.   They took account of the relevant authorities.   Reference was made to the case of Vento v Chief Constable of West Yorkshire Police [2002] IRLR 102 in support of their submission that it was not open to an appellate body to interfere with the assessment of an employment tribunal simply because it would have awarded a different figure.  It could only interfere in the event that the tribunal made an error of law, misapprehended the facts or made a wholly erroneous estimate of the loss suffered.
The Legal Principles

18	The relevant statutory provisions confer a discretion on an Employment Tribunal to make an award of compensation in any case in which they find there to have been discrimination on grounds of disability.  The level of compensation is to be fixed by applying the principles applicable to calculation of damages in claims in Scotland for breach of statutory duty and damages can include a sum in respect of injury to feelings.  Damages for breach of statutory duty in Scotland are payable only in respect of proven loss and injury.   No such head of damage arises here.   That left the matter of injury to feelings.   Awards for injury to feelings are compensatory and require to be just to both parties (Armitage, Marsden & HM Prison Service v Johnson [1997] IRLR 163).

19	Further, as an appellate body, it is not for us to assess the compensation.   Rather, we require to address the question of whether or not the tribunal applied a wrong principle of law, recognising of course that, if a tribunal’s award of compensation is substantially out of line with what is generally considered to be an appropriate level of award then that may, of itself, amount to such error.   
Conclusions

20	We conclude that the claimant’s arguments cannot be upheld and the appeal falls, accordingly, to be rejected.   

21	The tribunal assessed the appropriate sum, in the light of the facts and circumstances of this case, as being £500 and gave reasons for deciding on that figure.   We note their reference to the claimant’s job application not having been wholly in good faith.   That was a finding which, on the evidence accepted by them, they were entitled to make.   We read that comment as being, in the circumstances, indicative of the tribunal’s having assessed the likely impact on the feelings of a job applicant who is discriminated against being less in the case of someone who did not truly expect to get the job than in the case of one who had genuine hopes that they would do so.  In such circumstances, the rejection of the job application is hardly likely to be a surprise to the applicant and any injury to feelings, if rejection is because of discrimination, will not be of the nature of dashed hopes.  We are, accordingly, satisfied that the lack of good faith in the job application was something that the tribunal were entitled to take into account in deciding, as they evidently did, that the award in this case should be at the lowest end of the scale.  We note, in passing, that the claimant volunteered to us that he often applies for jobs that he is not really qualified for and he readily accepted that the tribunal were correct to have noted that he conceded to them that he was not particularly well qualified for the post with the respondents that he had applied for.  There seems to be no doubt that he did not really expect to be successful in his application.   

22	Further, we note the tribunal’s finding that the degree of hurt and distress in the claimant’s case was, in all the circumstances, including the lack of any medical evidence to suggest aggravation of his medical condition, minor.  Indeed, there is no indication of there having been any evidence as to the nature of the claimant’s upset or distress at all.  By contrast, in the case of Purves, there was a finding that the pursuer had been upset and distressed.   

23	We do not accept the claimant’s submission to the effect that absent a finding that the injury in his case was of the very slightest, he is entitled, as a matter of law, to more than £750.  It is, in any event, plain from a consideration of the decision as a whole that the tribunal did indeed find that the claimant’s injury was at the lowest end of the scale.   There are no rules as to minimum or maximum amounts for  awards of compensation and the fixing of them is not a precise science as is evident from the discussions in decisions such as that of the Employment Appeal Tribunal in Sharifi v Strathclyde Regional Council  and Armitage, Marsden and HM Prison Service v Johnson.   That said, principles have evolved which include that awards of compensation for discrimination should, generally, not be too low lest respect for the policy of anti-discrimination legislation be diminished although, equally, they should be restrained, bear some relation to awards in personal injury cases, take account of the value of money in everyday life and be worthy of public respect (Armitage, Marsden and HM Prison Service v Johnson).  The view has also been expressed by the Court of Appeal that, in less serious cases, awards of between £500 and £5,000 are appropriate (Vento v Chief Constable of West Yorkshire Police), a range which in itself seems to suggest that the category ‘ less serious’ may justify significantly varying valuations.   We do not read the tribunal’s findings and reasons in this case as departing in any way from an appropriate recognition of these principles.   

24	As regards the claimant’s submission that the tribunal failed to consider the need for public respect, we do not see that it is necessary for a tribunal to spell out that they have done so.  In the circumstances of this case, the tribunal have clearly determined that only a minimal award is justified and we are satisfied that that being so, public respect was adequately accommodated by fixing the award at the level they did.   Indeed, were they to have acceded to the claimant’s view that the appropriate award should be £2,500 or, indeed, any significant sum, then they would, we consider, have been running the risk of incurring a considerable loss of public respect for their award.   

25	We reject the arguments of the Claimant, accordingly and have decided that the appeal should be dismissed.