Appeal No.	 EAT/845/02/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 December 2002

Before
MR RECORDER TIMOTHY BRENNAN QC
MR D CHADWICK
MS P TATLOW

MISS T TOBY	APPELLANT

1) DOLPHIN SCHOOL TRUST 
2) MRS S ROGERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised 

	APPEARANCES

For the Appellant	No appearance or 
representation by or on 
behalf of the Appellant

MR RECORDER TIMOTHY BRENNAN QC

1	This is an appeal by Miss Toby against a Decision of an Employment Tribunal sitting at London South, under the chairmanship of Mr D Milton.  The Decision was sent to the parties on 17 April 2002.  We should record, before turning to the substance of the appeal, that nobody has appeared before this Tribunal today, in order to prosecute it.  A letter was sent to the Employment Appeal Tribunal dated 12 December 2002 from Cain and Abel Law Firm of London SE17, seeking an adjournment of, among others, this appeal, on the grounds of the ill-health of a person engaged in that firm, Mr Edward, a non-practising barrister.  

2	That application for an adjournment was refused by the Deputy Registrar who indicated that this appeal would remain in the list today and that it was the responsibility of Mr Edward’s firm to find alternative representation, as appropriate.  The application for an adjournment was renewed in a letter dated 16 December 2002, on materially identical grounds, and was, again, refused.  Nobody has now attended on the appeal, which we have considered with care on the basis of the documentation before us.  

3	The complaint by Miss Toby against the Respondents included a claim of unfair dismissal which failed, and as to which there is no appeal; a complaint of direct race discrimination, under sections 1 and 4 of the Race Relations Act 1976, which failed, and against which there is no appeal, and a complaint of discrimination by way of victimisation, contrary to section 2 of the Race Relations Act 1976, which succeeded.  

4	The appeal, which is contained in commendably concise amended grounds of appeal, received by the Employment Appeal Tribunal on 15 July 2002, raises two points concerning the calculation of the compensation to which Miss Toby was to be entitled, on the finding by the Employment Tribunal that she had been victimised, as already indicated.  

5	The first ground of appeal relates to the method of calculation of the actual and future financial loss, as it is put, which resulted from the discrimination by way of victimisation.  The core of the Employment Tribunal reasoning on this point is found in paragraphs 71 - 73 of their Decision.  They direct themselves entirely correctly that the question of compensation is to be addressed by reference to what it is just and equitable to award, corresponding to damages receivable in a County Court, the discrimination being, for these purposes, equivalent to a statutory tort.  

6	Paragraph 72 of the Decision continues as follows:
“72  We find that had the Governors”
 [that is to say of the school, the First Respondent]
“not been influenced by and guilty of the act of victimisation the Applicant should and would have remained in employment for a period of time subject to the already well-advanced disciplinary/capability proceedings.  We find that there was a one hundred per cent chance that the Applicant’s employment would have been terminated lawfully by [one of] two alternative means.  On the one hand we find that the Applicant would have been fairly dismissed after further warnings or alternatively we find that the Applicant would have followed through with the proposal which we have no doubt at all was uppermost in her mind, namely that she depart on consensual terms by way of resignation which had many obvious advantages to both parties in the case.  
Paragraph 73 goes on:
“73.  We have no doubt that the Applicant’s employment would have been lawfully terminated by one route or another at the latest by four months from 10 November and the Applicant having been paid one month’s notice pay therefore for loss of earnings, she is entitled to be compensated for three months’ net pay.

7	The relevant detriment involved the Applicant’s dismissal.  It was an ingredient in the decision to effect the Applicant’s dismissal that she had made a complaint (which the Employment Tribunal found to have been unjustified) that she had been the victim of direct race discrimination.  
8	In those circumstances, it was appropriate for the Employment Tribunal, as they did, to ask themselves what would have been the position had the victimisation not taken place.  They made findings, which are unassailable in this Appeal Tribunal, that had the victimisation not taken place, the Applicant’s employment would have terminated anyway within four months.  We find no fault whatsoever with that reasoning, we find no error of law in the assessment of the compensation under this head of damage at three months’ net pay, and the appeal on Ground 1, as set out in the amended Notice of Appeal, fails.  

9	Ground 2 raises the issue:
“whether the award of a mere £3000 for a victimisation and [on] racial ground[s] was derisory that it is unreasonable and erroneous on the current position in law.”

While not clearly expressed, that ground is clearly aimed at a challenge to the £3000 award for injury to feelings, addressed by the Employment Tribunal in paragraphs 74 - 77 of its Decision.  The Tribunal considered the seriousness of the injury to feelings.  The dispute between the Applicant and the Respondents which gave rise to the victimisation, arose at a late stage in a relationship which was clearly beginning to break down.  The Tribunal points out that this was not, in their view, in any way a case for aggravated damages, and in the general bracket of cases of victimisation, so the Tribunal found, it was towards the bottom end of the bracket of seriousness.  

10	The Tribunal, was, in our judgment, fully entitled to take the view that it did.  The figure of compensation of £3000, on which the Tribunal fixed, is by no means “derisory”, as the Appellant would contend; in our judgment, it is well within the boundaries of the reasonable figure which an Employment Tribunal was entitled to adopt.  For that reason, Ground 2, as set out in the amended Notice of Appeal also fails.  It follows that, in our judgment, there is no arguable point of law raised by this appeal which is accordingly dismissed.