Appeal No.	 EAT/1342/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 February 2000

Before
HIS HONOUR JUDGE H WILSON
MR D CHADWICK
MS B SWITZER

JCT 600 CONTRACTS LTD	APPELLANT

MR T HUSSAIN 	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IAN WOOD 
(OF COUNSEL)
INSTRUCTED BY:
MESSRS HAMMOND SUDDARDS
SOLICITORS
2 PARK LANE
LEEDS
LS3 1ES	

JUDGE WILSON:-

1.	We have been concerned in this case with the preliminary hearing of the proposed appeal by the Respondent company in the original application.  We assume it that the Respondent company includes the two employees who are the second and third respondents to the original application, the managing director and subordinate concerned with the matters at issue.

2.	The issue of liability was dealt with first and separately by the Employment Appeal Tribunal and occupied six full days of hearing.  The Applicant appeared in person and the other Respondents were represented by Counsel.  The complaint was of racial discrimination and victimisation when the Applicant applied for the vacant post of Purchasing Manager which had been advertised by the Respondent company.  He had not been called for interview and he alleged direct discrimination and victimisation.  

3.	There had been earlier proceedings on two occasions between this company and this Applicant and on the second occasion in 1977 he had been taken the full distance by the company before an Employment Tribunal and eventually he had won.  When he applied for the job in the current case he had included the Industrial Tribunal decisions in the earlier cases and press cuttings to do with those matters with his application and the company said that they had been ignored as irrelevant.

4.	The outcome of the liability proceedings was that the Employment Tribunal unanimously found in favour of the Applicant under the Race Relations Act 1976 against each of the Respondents jointly and severally.   The judgment of the Employment Tribunal runs to over six pages of A4 typescript and paragraph 5 in particular sets out the background history and then the facts found.  

5.	The conclusion that the Employment Tribunal drew from the facts found was that there had been a deliberate campaign by the company to avoid any possibility of employing the Applicant.  Paragraph 5(r) states, with regard to the failure to find a suitable candidate for the job as advertised, that the sensible and expected thing would then be to try to find somebody to do the job which had been done by the person who was leaving the company.  Instead of that, the Employment Tribunal found that the company:-

“Decided to alter the requirement and appoint somebody from within the company who was considerably junior to make it, instead of a professional purchaser role, simply a supervisory role and promoted a purchasing assistant into that job without further ado. That action combined with the admission and evidence that Mr Hussain could have filled like-for-like the job done by Cally Walker and had that been advertised he would have been a very strong candidate, starts to give credibility to the suggestion that the original recruitment was set up to avoid the choice to having to employ Mr Hussain. That was something the Respondents did not want to do in view of the history that there was between Mr Hussain and the Respondents.   The Tribunal considers that that was the principal reason why the Respondents decided to advertise in such a way that they would attract a wide range of people including those senior to the Applicant and that that therefore would try to exclude Mr Hussain at that stage.  The Tribunal finds that there was a strong inference, incredible as it may have first seemed, that the whole exercise was established to exclude Mr Hussain who the Respondents had a very strong expectation would apply for the post vacated by Cally Walker.”

6.	Elsewhere, in the decision at 5(t), dealing with the equal opportunities policy which had been instituted by the company after Mr Hussain’s previous successful application, the Tribunal observed:-

“The point is that the policy itself, which was put into being allegedly to protect the candidates from racial discrimination, was not followed even though the race relations questionnaire said that it was followed and it was not until Mr Mann gave his evidence and was cross-examined that the  flaws, eg. in the application of personal knowledge, began to appear.”

The Tribunal had found that the application of personal knowledge was a flagrant breach of the principles of any equal opportunities policy.  

7.	The conclusion on liability was emphatically in the applicant’s favour. At the outset of his submissions before us today, Mr Wood on behalf of the proposed appellant company, told us that there is no appeal against the decision on liability and that therefore the Appellants are bound by the findings of fact of the Employment Tribunal.  

8.	The issue on appeal concerns the way in which damages for injury to feelings have been increased because of aggravating features.  Mr Wood submits that in the circumstances to increase a base figure of £10,000 to £30,000 to reflect aggravation really is an error in law because it was a punitive award rather than a compensatory one. He refers us to a number of cases including, in particular, the judgment in the case of the Prison Services and Others v Johnson [1997] ICR 274.  He refers in particular to the principles which are summarised by Mrs Justice Smith at page 283 letters b-d. We note, in passing, that there is a reference earlier in her judgement by Mrs Justice Smith to a quotation from Sky Rail Oceanic Limited v Coleman 1981 ICR 864 which is set out at page 281 letter (e):-

“We should only interfere if we consider that the Tribunal have “acted on a wrong principle or law, or have misapprehended the facts or have made wholly erroneous estimate of the damage suffered”.”

9.	In this regard we have turned to the way in which the matter is expressed.  In the separate decision on remedy, the unanimous decision of the Employment Tribunal was that the Applicant should be paid £33,980.00 of which £30,000.00 was in respect of injury to feelings.  The Tribunal dealt with that aspect of the matter and its directions to itself in paragraphs 7 and 8 of the decision and we quote paragraph 8 in its entirety:-

“The Tribunal therefore assesses the injury to feelings in this case, accepting Mr Hussain’s evidence, at £10,000 but the aggravating factors are considerable.  What does an employee who has been racially discriminated against by an employer do when having taken that matter before a Tribunal (in the case of this employer there had been several previous applications) and having gone through the due process of law, that employer sets its face against him in spite of the law and then relentlessly defends the case through the Tribunal when the case is brought against them, alleging that it is frivolous and vexatious, making all sorts of allegations against the Applicant that it was not a genuine application and so on, and follows that through, even after the finding of liability and the terms in which liability was found in this case, right through a lengthy remedy hearing and without any sign of apology.  This is a very unusual case, thankfully, in this respect and it is a case which it would not be extravagant to multiply the injury to feelings, taking into account those aggravating factors to a figure of £30,000.  The Tribunal is well aware that it must give awards that is so large as to discredit Tribunals, or to give ones that are so low that they do not adequately compensate an applicant or that they can be seen in such a way that they, as low awards, do not discourage this sort of behaviour.  The Tribunal has to take into account as well that awards must not be made on the basis of punishing Respondents.   The injury to feelings and the aggravating factors in particular in this case are grave indeed and it is for these reasons that the Tribunal deals with the award in this way and makes that award in these amounts.”

10.	Paragraph 6 of the Extended Reasons refers to the other applications Mr Hussain had brought against other employees, but it was a matter which was not taken into account by the Employment Tribunal.  What was taken into account was that this employer had set out deliberately to exclude a person for racial reasons such conduct was bound to cause severe injury to feelings.   

“Mr Hussain had high hopes, he expected he was the person who would get the job or at least that he had a very good chance.  Mr Mann’s evidence was that had the job advertised being that of Cally Walker, Mr Hussain would have had a very strong chance.  It was clear to the Tribunal that that was the reason that the steps were taken by the Respondents to ensure that Mr Hussain would not be a suitable candidate.”  

11.	The Tribunal dealt with the question of personal injury and it is quite clear from the terms of paragraph 8 that Mr Hussain is a resilient person.  That clearly affected the way in which the Tribunal felt it had to recognise injury to health but nevertheless, because somebody is a resilient personality does not reduce or minimise injuries to feelings.  In the event, the Tribunal made a nominal award in respect of personal injury of a £1,000 for the reasons set out in paragraph 8.  

12.	Mr Wood submits that we should permit this matter to go forward for full argument on the question whether having regard to prevailing authorities, the Employment Tribunal reached a conclusion which a reasonable Employment Tribunal properly directing itself, was entitled to reach in making its award for injury to feeling, or whether it had erred in the award which it did make.   In our view, where any substantial award of damages is made, the payer is very likely to consider that the award is punitive.  In this case, having regard to the way in which the Employment Tribunal directed itself, it seems to us that it took into account all the matters which had to taken into account and it is quite clear that it was outraged by the conduct of this company and its managing director for the way in which had deliberately set out to flaunt the law, not only in the way in which it dealt with this vacancy but also in the way in which, and the purpose for which it had set up what it called an equal opportunities policy but was not designed to protect those sort of interests at all, and by the way in which lies had been told in answer to the race questionnaire.  

13.	The Employment Tribunal clearly came to the conclusion that this was a particularly flagrant case.  Given the background of the relationship between the applicant and the company and Mr Mann, the Employment Tribunal considered that the injury to feelings had been out of ordinarily severe and they made an award which they increased for the reasons they gave in paragraph 7 of their reasons of decision on remedy.  

14.	In our judgment, having regard to Parliament’s intention in placing no limit and damages for injury to feelings in racial cases, the Employment Tribunal fell into no error of law and there is no prospect of success for this case, were it to be argued fully.  Accordingly, the appeal must be dismissed at this stage.