Appeal No.UKEAT/0216/03/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 November 2003

Before
HIS HONOUR JUDGE RICHARDSON
MR D J HODGKINS CB
MR S M SPRINGER MBE

INSTANT MUSCLE LIMITED	APPELLANT

MR N KHAWAJA	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P DOUGLAS
(Advisor)
Smaller Business Advisory Services
34-36 Streetly Lane
Sutton Coldfield
West Midlands B74 4TU	
For the Respondent	MR B MILLS
Greenwich Community Law Centre
187 Trafalgar Road
Greenwich
London SE10 9EQ	

HIS HONOUR JUDGE RICHARDSON

1	This is an appeal against a Decision of the Employment Tribunal sitting in the London South hearing centre, promulgated on 29 October 2002.  By its Decision the Employment Tribunal awarded damages of £6000 for injury to feelings consequent upon disability discrimination. The award was made in favour of Mr Nadim Khawaja against his former employers Instant Muscle Ltd, hereafter called “the Company”.  The Company appeals against the Decision.  

2	Mr Khawaja is paraplegic and confined to a wheelchair.  He is a disabled person within the meaning of the Disability Discrimination Act 1995.  The Employment Tribunal described him as articulate and of an engaging personality.  The company is a national charity; it helps those who are long-termed unemployed to secure sustainable employment.  Mr Khawaja was with the company for a little less than five months.  He started work on 4 June 2001 and on 22 October 2001 he was dismissed on the ground that he was not managing to do the job for which he was employed.  Mr Khawaja commenced proceedings for disability discrimination.  His case came before an Employment Tribunal for two days in August 2002.  The Extended Reasons for this Decision, which we shall call the “Liability Decision” were promulgated on 23 October 2002.  

3	Part of Mr Khawaja’s complaint was about his dismissal.  The Employment Tribunal found that the company did not discriminate him by dismissing him.  The balance of Mr Khawaja’s complaint was about working conditions.  He said that he was substantially disadvantaged in the workplace and adjustments should have been made.  

4	The Employment Tribunal identified ten different complaints.  Eight of them were rejected.  However two complaints were upheld.  It was for these that damages were awarded.  We must look at these two in greater detail to see what findings the Employment Tribunal made.  

Access to the roof terrace on the third floor.  
5	In his Originating Application Mr Khawaja had complained that due to his being in a wheelchair, he had limited access in the building in which he worked.  He said he was the only wheelchair user in the premises and felt isolated.  He said that he was not able to take part in discussions at breaks.  Asked for further particulars he said that there were areas in the building where he could not have access.  He named the terrace as one of those areas, he described it as a “social point”; he says he sometimes felt isolated from others.  Mr Khawaja also said that he spoke to the Health and Safety Officer of the company in the first week of his employment about access to parts of the building and was told the matter would be looked into soon.  

6	In its Notice of Appearance the company said that it had no control over the building and no ability to make adaptations outside its rented space.  In its Liability Decision the Employment Tribunal found that there were two areas where staff would congregate during breaks.  There were two breaks of fifteen minutes each day; those areas were places where people could smoke; Mr Khawaja was a smoker.  One area was outside at ground level and presented no problem to Mr Khawaja, the other was the third floor terrace.  There was a step some fifteen inches high.  Mr Khawaja would slide himself off his wheelchair to sit on the ledge of the terrace while his colleagues were out there.  The Employment Tribunal found that the company was aware of this.  Later, in that Decision, the Employment Tribunal said that it would not have been practicable to put a long ramp up the terrace step but it would have been practicable to put a short ramp in place which would have enabled Mr Khawaja to get up to the terrace.  The Employment Tribunal found that it would be natural for an able-bodied person following him out towards the terrace to push him up the ramp; he would be able to return in his wheelchair unassisted.  The Employment Tribunal held that the company was in breach of a section 6 duty to provide a short portable ramp to the third floor terrace.  

Arrangement for access in the event of fire
7	We have not detected any complaint in Mr Khawaja’s Originating Application concerning arrangements for access in the event of fire.  It is clear, however, that this was in issue at the Liability Hearing.  The Employment Tribunal summarised its findings as follows:
“Mr Khawaja worked primarily on the ground floor but he was also required to work on the third floor on a regular basis.  In the event of fire the lifts would be switched off so that exit would be by the stairs only.  Ensuring Mr Khawaja’s safety in the event of fire was left by the Company entirely to chance or the goodwill and presence of members of staff who might be aware where he was”

The Employment Tribunal found that this matter had not adequately been considered by the company.  It would have been reasonable for the company to have taken steps to make arrangements for Mr Khawaja’s evacuation from the third floor in the event of fire.  There is before us no appeal against the Liability Decision.  Although the Company’s Notice of Appeal refers to it, the Company was out of time to appeal against that Decision and an extension of time was refused.  

The Remedies Decision 
8	The Remedies hearing took place on 29 October.  On that day the Tribunal heard evidence only from Mr Khawaja; it made further findings.  As regards the issue of safe evacuation the Employment Tribunal found that Mr Khawaja spent between thirty minutes and two to three hours per day on the third floor, varying from day to day, though his work place was on the ground floor.  It found that he had raised the question of evacuation with the company’s Health and Safety Officer in the first week of his employment and also with his line manager at supervisions, but although Ms Joseph said she would speak to her colleague, nothing came of it.  It found that he would have a “nagging concern” as to what would happen to him if there was a fire whenever he was on the third floor.  

9	As regards the issue of access to the third floor terrace, the Employment Tribunal had already found that he had two fifteen minute breaks per day and had the option of going to the third floor terrace or remaining on the ground floor.  The Employment Tribunal recorded that it was humiliating for him to sit at the feet of colleagues when on the step and humiliating for him to have to ask for help to get in and out of the terrace by wheelchair.  The Employment Tribunal concluded as follows:
“In arriving at our decision as to injury to feelings we had regard to the guidance of the EAT in ICTS v Tchoula.  We have regard to the constant need for the Applicant to seek help, his need for assistance from colleagues who had other priorities and the humiliation for him having to sit at the feet of his colleagues on the third floor terrace.  We also had regard to the fact that the Applicant had raised concerns regarding his safe evacuation in case of fire from the third floor and nothing was done.  In this case this act of discrimination was life threatening although the Applicant did not spend all his time on the third floor and risk of the life threatening event may have been miniscule.”

The Employment Tribunal said that they placed injury to feelings at the upper end of the lower bracket envisaged by the Employment Appeal Tribunal in Tchoula and made an award of £6000 for injury to feelings.  

The parties’ submissions
10	The Company’s submissions may be summarised as follows: first, it submitted that the Employment Tribunal erred in taking into account “the constant need for the Applicant to seek help and his need for assistance from colleagues who had other priorities.”  This, it is said, arises from his disability as such, it does not arise from the specific acts said to be discrimination.  It is a misdirection to take it into account in assessing damages for the limited acts of discrimination which were proved.  

11	Secondly it is submitted that the Employment Tribunal erred in awarding damages for injured feelings when these were not specifically mentioned in the Originating Application.  The company relies on Ministry of Defence -v- Sullivan [1994] ICR 193.  

12	Thirdly it is submitted that the Employment Tribunal erred in taking into account Mr Khawaja’s “nagging concern” about his safety on the third floor.  It is submitted that an award for injury to feelings is for “anger, distress and affront caused by the act” - see Ministry of Defence -v- Cannock and Others [1994] ICR 918.  It is submitted that a “nagging concern” cannot sound in damages at all.  

13	Fourthly, it is submitted that the Employment Tribunal failed to consider whether the injury to feelings resulted from the knowledge that the act was an act of discrimination.  This, it was submitted, was an essential feature - see the decision of the Court of Appeal in Skyrail Oceanic Ltd -v- Coleman [1981] ICR 864.  It was submitted that the Employment Tribunal, having had its attention directed towards this decision, should have dealt with it specifically.  Fifthly, it was submitted that the Employment Tribunal’s award of £6000 was excessive and erroneous and liable to be set aside in accordance with the approach of the Court of Appeal in Skyrail.  

14	Sixthly, it was submitted that in various respects the Employment Tribunal reached findings of fact which were not open to it, having regard to its findings at the Liability Hearing.  There was, it is said, no finding about humiliation at the Liability Hearing, no finding that others occasionally helped Mr Khawaja on to the roof terrace and it is said that there is inconsistency in what was found at the Liability Hearing concerning complaints to management and what was found at the Remedies Hearing.  

15	On behalf of Mr Khawaja, Mr Mills supports the Employment Tribunal’s Decision.  He refers to the unrivalled position of the Employment Tribunal to assess an award of compensation.  He submits, and we agree, that unless there is an error of law or the award is manifestly excessive, the Employment Tribunal cannot intervene.  He says that there is inconsistency of findings at the difference hearings.  He says that the matter of injured feelings was sufficiently raised in the Originating Application and the subsequent witness statements.  He says that there is no error of law at all in taking into account Mr Khawaja’s nagging concern about safety arrangements.

The Law
16	An employee’s remedy for unlawful discrimination on the grounds of disability is a complaint by virtue of section 11(1) of the Disability Discrimination Act 1995.  Where an Employment Tribunal finds that such a complaint is well founded, section 11(2)(b) provides that if the Employment Tribunal considers it just and equitable to do so, it shall order the employer to pay compensation.  By section 11(3) the amount of compensation must be calculated by applying principles applicable to the calculation of damages in claims in tort.  By section 11(4) it is expressly provided for the avoidance of doubt that such compensation may include compensation for injury to feelings whether or not it includes compensation under any other head.  The provisions of section 11 of the 1995 Act closely mirror provisions relating to remedies for race discrimination in sections 56 to 57 of the Race Relations Act 1976 and sex discrimination, sections 65 to 66 of the Sex Discrimination Act 1975.  

17	The leading case on compensation for injured feelings by reason of unlawful discrimination is now Vento -v- West Yorkshire Police [2003] ICR 318.  There is a full discussion of the principles and the authorities at paragraphs 45 to 64.  There is guidance for Employment Tribunals at paragraphs 65 to 68.  Vento -v- West Yorkshire Police was itself a sex discrimination case.  It is clear, however, that the Court of Appeal intended to set out guidance which applies more generally to discrimination cases.  The Court of Appeal drew on decisions in the field of race discrimination as well as sex discrimination.  There is no specific mention of cases relating to disability discrimination, but the legislation relating to this is recent.  Experience learned in sex and race discrimination cases should, in our judgment, be applied to disability discrimination cases as well.  

18	We consider that the guidance set out in Vento should be applied in general terms to awards of compensation for injured feelings arising out of disability discrimination.  The guidance in Vento included the following, at paragraph 65:

The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race……….. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. 
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. 
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.

We observe that it would be rare indeed for an award in a disability discrimination case to fall within the top band.  We observe that it is thankfully rare in our society for there to be lengthy campaigns of harassment on the grounds of disability, but in the rare case of such a campaign, an award in this bracket will be appropriate.  

19	The middle band will occur more frequently in a disability discrimination case.  Some disability discrimination cases are serious and may be expected to have a serious effect on the feelings of a victim.  Such an award is likely to be appropriate where an employee has been dismissed on grounds which amount to disability discrimination; it may be appropriate where over many months or years an employee has had to put up with working conditions which plainly call for amelioration and affected his work substantially, but in our view it is plain that there are lesser cases of failure to make an adjustment which are likely to fall within the lower band.  

20	The Employment Tribunal in this case did not have the advantage of considering Vento which was not decided until December 2002.  The Employment Tribunal applied earlier guidance in the decision of the Employment Appeal Tribunal in Tchoula -v- ICTS [2000] ICR 1191.  In that case the Employment Appeal Tribunal had identified a higher and lower category of award.  The higher band included cases which amounted to campaigns of harassment; the lower band included at least some cases which fell into the Vento middle category.  In Tchoula the Applicant had been the subject of acts of victimisation for making complaints of discrimination.  They had led to his dismissal.  In Tchoula the Employment Appeal Tribunal allowed an appeal against an award of £22,000 for injured feelings and substituted an award of £7,500.  In our judgment, the facts in Tchoula fall within the middle band set out in Vento and the result in Tchoula is consistent with the bands set out in Vento.  

21	The Employment Appeal Tribunal can interfere with an award of compensation by an Employment Tribunal if, and only if, it discloses an error of law.  The assessment of damage for injured feelings is a matter of fact for the Employment Tribunal.  The Employment Appeal Tribunal may interfere if, and only if, the Employment Tribunal has acted on some wrong principle of law, or failed to take into account a factor which it was bound to take into account, or taken into account a factor which it was bound to leave out of account, or made an award which was manifestly excessive so as to demonstrate there must be some error of principle underlying it.  

Our conclusions
22	We can deal briefly with some criticisms which the Company made of the Employment Tribunal.  An award for injured feelings is generally to be expected when a finding of discrimination has been made because it will generally be just and equitable to make such an award.  An award is not inevitable but the Employment Tribunal did not err in law in making an award in this case simply because the Originating Application did not focus on it specifically.  

23	There was, in our judgment, sufficient in the Originating Application, the Particulars and the witness statement of Mr Khawaja to make it entirely proper to make an award for injured feelings.  The Employment Tribunal did not err in taking into account a nagging concern where this flowed from an act of discrimination.  Injured feelings are not limited to anger, distress or affront.  They may include disappointment at losing a job, or particularly in a disability case, concern, worry or inconvenience caused by the failure to make an adaptation.  

24	In the context of this disability discrimination case no issue arises about the knowledge of Mr Khawaja.  The company’s submission based on the Skyrail Oceanic case is misplaced.  Mr Khawaja knew he could not gain full access to the roof terrace; he knew about the fire escape procedure.  The circumstances in Skyrail Oceanic were quite different, it was a case where there was more than one reason for a dismissal.  

25	The Employment Tribunal did not err in making further findings of fact at the remedies hearing.  It will frequently be the case that an Employment Tribunal will focus at a remedies hearing on issues which would have been of peripheral relevance at a liability hearing.  Nor are we satisfied that any finding of the Employment Tribunal at the remedies hearing was inconsistent with findings at the liability hearing.  We think the explanation for the difference lies in the different use of concepts such as grievance procedure, staff meeting and supervision. 

26	However, there is, in our judgment, force in other criticisms which are made of the Remedies Decision.  The Employment Tribunal’s essential conclusions are set out in paragraph 7 of the Remedies Decision, which we have set out above.  In our judgment, these conclusions demonstrate that the Employment Tribunal has erred in law.  It has failed to relate its award to the relatively narrow findings of discrimination which it has made.  

27	The Employment Tribunal said that it had regard to the “constant need of the Applicant to seek help”.  We do not see how either of the respects in which the Applicant’s case succeeded can be said to have caused a constant need to seek help.  As regards the roof terrace, this was no more than one of two smoking areas in the premises which Mr Khawaja might visit on, at most, two occasions per day.  Moreover, even if the company had made the adaptation which the Employment Tribunal found it should have made, the Employment Tribunal approached the case on the basis that Mr Khawaja still might need help to be pushed up to the roof terrace.  

28	As regards the fire evacuation procedure, no question of “constant need to seek help” arises.  The Employment Tribunal seems to have confused Mr Khawaja’s need for help, which arises from his disability, with the consequences of discrimination.  The Employment Tribunal then says it has regard to “his need for assistance from colleagues who had other priorities”.  The same criticism applies here.  Neither of the measures which the Employment Tribunal found wanting would have obviated altogether his need for assistance from other colleagues.  One of them, the fire escape procedure, would not have obviated this need at all.  

29	The Employment Tribunal also says that it had regard to the fact that Mr Khawaja raised concerns regarding his safe evacuation in case of fire from the third floor, and nothing was done.  It is important not to confuse compensation for injured feelings, which the Employment Tribunal was awarding, with aggravated or exemplary damages which the Employment Tribunal was not awarding.  Mr Khawaja’s complaint was a “nagging concern”.  It was not said by him that he felt outraged or hurt by the way he was treated.  The matter, it will be recalled, was not specifically identified at all in his Originating Application or Further Particulars.  

30	With these comments, we looked at the award of £6000.  Each member of this Appeal Tribunal independently has reached the view that this award was manifestly too high.  The Employment Tribunal said they looked to Tchoula for guidance, but the award in Tchoula was for a case of victimisation leading to dismissal.  We have no doubt that in terms of Vento this case falls within the lower bracket.  We think the Employment Tribunal has been influenced by erroneous reasoning in the respects we have set out above.  

31	The appeal will therefore be allowed.  The question arises what course should we take?  We will take the same course that the Court of Appeal took in Vento and this Tribunal took in Tchoula.  Our task is to substitute what we consider to be the fair and just and reasonable award.  We take into account the length of Mr Khawaja’s employment, less than five months.  We take into account the Employment Tribunal’s description of his injured feelings, which is put higher in respect of the roof terrace and lower in respect of the fire precautions.  We emphasise that the award relates only to the two findings of discrimination which the Employment Tribunal made.  We consider that a just award is £2,500.  

32	Accordingly the appeal will be allowed, the award of £6000 will be set aside and an award of £2,500 will be substituted.