FAIR EMPLOYMENT TRIBUNAL

CASE REFS:  68/09FET
300/09

CLAIMANT:		Patrick McDonagh

RESPONDENT:		Belfast City Council & Another

DECISION ON REMEDIES

The unanimous decision of the Tribunal is as follows:

(A)	The claimant has withdrawn his claims of religious and political discrimination.  Accordingly, those claims are dismissed.

(B)	It is now agreed between the parties that the Council did unlawfully discriminate against the claimant, contrary to the Disability Discrimination Act (“DDA”), in failing to provide relief cover during the absence, in December 2008 and January 2009, of the claimant’s line manager, and that the relevant form of discrimination was a failure to make a reasonable adjustment.

(C)	The respondent must pay to the claimant the sum of £6,450 as compensation in respect of that discrimination.

Constitution of Tribunal:
Chairman:		Mr P Buggy	
Members:		Ms C Stewart
			Mrs M Heaney	

Appearances:
The claimant was represented by Mr P Moore, of PM Associates.
The respondent was represented by Mr M McEvoy, Barrister-at-Law, instructed by the Belfast City Council Legal Services Department.

REASONS

1.	At the end of the hearing, we issued our decision orally.  At that time, we also gave our reasons orally.

2.	At all material times, the claimant was employed, and he is still employed by the Council.  He is employed as an assistant manager in the Cleansing Department.

3.	In 1998, the claimant was diagnosed with acute prostatitis.  He still suffers from that condition.  Because of that condition, he has a disability within the meaning of the DDA.  Because of that condition, the claimant was on sick leave for a lengthy period. Against that background, certain special arrangements were agreed between the claimant and the Council.  Among those arrangements was provision for the claimant to be provided with relief cover whenever his line manager was expected to be absent for a lengthy period.  (According to the agreement, the cover was to be provided no later than the second day of the absence).

4.	The claimant’s line manager was absent from work from 22 December 2008 until 5 January 2009.  No holiday relief cover was provided to the claimant during any part of that period.  

The facts

5.	The claimant gave evidence as to the extent of the injury to his feelings which had been caused as a result of the relevant failure to provide holiday cover.  We accepted the truthfulness and accuracy of that evidence.  We also accept that the failure to provide cover was due to inadvertence and was not due to malice.

The arguments

6.	Mr Moore stated that no claim for personal injuries compensation was being made in this case. Instead, the claim for compensation was a claim only in respect of injury to feelings.  He drew our attention to two particular Northern Ireland tribunal Decisions in which awards in respect of injury to feelings had been made in relation failures to make reasonable adjustments. 

7.	 Reference was also made to the case of Vento v Chief Constable of West Yorkshire Police [2003] ICR 318.  The parties both agreed that the “Vento” bands, as updated by a more recent Employment Appeal Tribunal judgment, provided an appropriate framework for consideration of the assessment of compensation in this case.

8.	As updated, the three Vento bands are as follows:

(1)	£500 to £6,000 (formerly £500 to £5,000);

(2)	£6,000 to £18,000 (formerly £5,000 to £15,000); and

(3)	£18,000 to £30,000 (formerly £15,000 to £25,000).

9.	The arguments on behalf of the respondents can be summarised as follows.

10.	First, where a tribunal orders compensation in respect of an act of discrimination, the amount of compensation has to be calculated by applying the principles applicable to the calculation of damages in claims in tort: See section 17A(3) of the DDA.  Furthermore, in the calculation of compensation in this case, the Tribunal has discretion to act, and should act, in accordance with justice and equity.

11.	For the Council, Mr McEvoy accepted that McConnell v Police Authority for NI [1997] NI 244 was authority for the proposition that compensation in respect of discrimination had to be entirely compensatory.  Nevertheless, he argued that the Tribunal should take account of the following. The Council had taken a careful and flexible approach to the workplace difficulties which had arisen because of the claimant’s disability.  There had been a substantial and conscientious dialogue between the Council and the claimant on the matter.  It was necessary to put the admitted act of discrimination within that context.  The relevant act had occurred only because of a breakdown in communication.

12.	Furthermore, according to the Council, the claimant, by failing to immediately inform the Council of the failure to provide the holiday cover (at Christmas 2008) had made a contribution to the situation and, on a just and equitable basis, the award of compensation should take account of that alleged  element of contributory conduct.

13.	In any event, according to the Council, the claimant could have taken action with a view to minimising the effect of the failure to make a reasonable adjustment.  For example, he could have taken sick leave during the relevant period.  And it was noted that he had taken annual leave (for the purpose of recuperating) once the line manager’s period of absence was over, so the experience was, as a result, less stressful than it might otherwise have been.  

14.	According to the Council, any award of compensation should be within the lower half of the lowest of the updated Vento bands.

15.	The Council argued that, in assessing the amount of compensation, the tribunal should take account of the fact that this incident did not cause long-term damage to the employment relationship. According to the Council, it was proper for the tribunal to have regard to the fact that this was an isolated incident.

The law

16.	The key passage in Vento is at paragraph 55 of the judgement, which is in the following terms:

“65. Employment Tribunals and those who practice in them might find it helpful if this court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury.  (i)  The top band should normally be between £15,000 and £25,000.  Sums in this range should be awarded in the more serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race.   This case falls within that band.  Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.  (ii)  The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.  (iii)  Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence.  In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.”

Conclusions

17.	As already noted above, during the hearing, we provided oral reasons for our decision.  Those oral reasons were as follows.

18.	The allegations of breach of the Fair Employment and Treatment Order were withdrawn.  Accordingly, both respondents are entitled in every respect to be treated as they would have been treated if no such allegations had ever been made.  

19.	In relation to the complaint of disability discrimination, the position was as follows.  The Council had failed to make the relevant reasonable adjustment.  The law provides in those circumstances that the claimant is entitled to compensation.   The fact that the Council failed to make the relevant adjustment is unfortunate and shouldn’t have happened.  (However, it is important, in the present context, to note the overall pattern of interaction between the claimant and the Council and to record that in this Tribunal’s view. The Council has consistently approached the relevant issues in a conscientious and flexible and positive way).

20.	We consider that the two tribunal Decisions to which we were referred are Decisions which arise out of the particular facts of each relevant case.  In terms of legal principle, we found the Vento case to be the most helpful source of guidance.

21.	We note that there is no hierarchy in respect of injury to feelings.  For the same extent of injury to feelings, a claimant is entitled to the same extent of compensation, regardless of the type of unlawful discrimination (whether it is, say, religious discrimination, or gender discrimination, or disability discrimination) which has occurred.

22.	We noted the updated Vento categories, as already outlined above.

23.	We noted that this was a one-off event.  However it did last for nearly a fortnight.  It occurred at the culmination of what had been a lengthy process during which the claimant has been doing his best to persuade the Council of the need to provide him with relief cover.  At the time of the 2008/2009 Christmas break, the claimant was more vulnerable than most to hurt feelings, as a result of the health difficulties which he had faced and which he continued to face.  We note that awards in respect of injury to feelings are entirely compensatory.  (Thus, they cannot be reduced to reflect the good intentions of the person who discriminated).

24.	In our view, the extent of the injury to feelings in this case falls at the top end of the lowest of the updated Vento bands.  Therefore, a principal sum of £6,000 has been awarded in respect of the injury to feelings in this case. 

25.	In accordance with the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 [SRNI 1996/581], we award interest on that principal amount at the rate of 7.5% (which broadly reflects an annual award rate of 8% from date of injury to date of calculation).

26.	We are not of the opinion that, in relation to the relevant award, there are circumstances which have the effect that serious injustice would be caused to the Council by awarding interest in respect of the entire award or in respect of the entire period.

27.	Interest at 7.5% on £6,000 amounts to £450.  Therefore, the overall award of compensation is £6,450.

28.	In our oral reasons (which have been repeated above), we made clear that we were awarding the claimant compensation in respect of all of the injury to feelings suffered by him.  For the avoidance of doubt, we now explicitly state that, in particular, we did not accept that it was appropriate to reduce the award to reflect any omission on the part of the claimant to take action with a view to minimising the effect of the failure to make the relevant reasonable adjustment. Furthermore, we have noted that, in section 17A(2) the reference to what is just and equitable is made in the context of the choice of the type of remedy (as distinct from being made in the context of the provisions relating to the assessment of the extent of any compensation awarded).

29.	We are very appreciative of the manner in which the Council has approached these issues generally.  

30.	First, the way in which the Council has generally interacted with the claimant is an example of good practice.  

31.	Secondly, on the basis of such information as was available to us, it seemed to us that the Council was right to concede that here had been a failure to make a reasonable adjustment (even though this failure was as the result of inadvertence, not malice).  If the Council had continued to contest the liability issue, it seems to us that the strong likelihood is that the Council’s defence would ultimately have been unsuccessful, but only after a number of additional days of hearing.

Interest

32.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 
Chairman:

Date and place of hearing: 	30 November 2009 and 1 December 2009, Belfast.	     

Date decision recorded in register and issued to parties: