Appeal No. EAT/0526/02/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 March 2003

Before
HIS HONOUR JUDGE ANSELL
MR D BLEIMAN
MRS D M PALMER

MR M SAUNDERS	APPELLANT

APCOA PARKING UK LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS E MELVILLE
(Of Counsel)
Instructed by:
Messrs Thompsons
Solicitors
Congress House
Great Russell Street
London
WC1B 3LW	
Respondent Debarred		

HIS HONOUR JUDGE ANSELL

1.	This is an appeal from an Employment Tribunal sitting at London Central on 27 February 2002 who in a unanimous decision promulgated on 19 March 2002 awarded a sum of £250 compensation to the Appellant for having being subjected to a detriment short of dismissal as a trade union representative under section 146 of the Trade Union & Labour Relations (Consolidation) Act 1992.  The appeal relates to that award and to the approach of the Tribunal in assessing that award.

2.	The Applicant , Mr Saunders had been continuously employed since 5 June 1989 having been transferred to the Respondents on a TUPE transfer in April 2000 and the complaint in this case was presented on 3 September 2001 complaining of action short of dismissal as a Trade Union representative.  He was subsequently dismissed but was then reinstated following a further application being issued by him.  

3.	He had become a UNISON shop steward in 2001 and had been subject shortly thereafter to some personal disciplinary proceedings but the claim in relation to these matters relates to his Union activities.  Mr Muir was the contracts manager for Camden North on behalf of the Respondents who had a five year contract providing parking attendance services for Camden.  On 14 June 2001 he sent a letter addressed to the staff on this particular contract in fairly unpleasant terms.  The Tribunal held that it was unprofessional in its tone.  It read as follows:

““For those people from the planet ‘Zog’ who seem to spread rumours about who’s coming, going, contracts won/lost etc.’ why don’t you come and ask me first and I will give you a comprehensive politician’s answer!  Seriously, I will endeavour to give you the answer or as much information as possible …
Finally I would like to advise you that I have written your name on each of these letters in infra-red ink so if I find this letter laying on the floor I will know whose it is!  Be warned!””

4.	Mr Saunders wrote a UNISON newsletter on 27 June and placed on the notice board.  It was written in the same vein as Mr Muir’s language and complained about Mr Muir threatening people and made remarks as follows: 

““To round off the first of many letters to members of UNISON we have printed this letter in infra-red ink and if copies are left laying around we will know who you are and you will find yourself open to action being taken against you.

We hope you have now had a good laugh at the cost of management and some of these childish attitudes.  Until the next time, this is the dogs signing off.””

5.	What followed thereafter led to the Tribunal case.  On 31 July a meeting was held at which Mr Corrall Respondent’s Operation Manager told the Appellant that the UNISON information on the notice board must be sanctioned by the Respondents.  On 22 August he was notified of a preliminary investigation “into allegations that you have been producing malicious and negative material”.  Preliminary investigation was held on 24 August 2001 and there was a subsequent meeting on 29 August.  On 29 August he was informed he was required to attend a disciplinary hearing on a charge of bringing the company into disrepute.  He presented his application on 3 September 2001 and the Tribunal held that his claim succeeded in relation to the meeting of 31 July, the preliminary investigation and notification of disciplinary action in relation to bringing the company into dispute in August 2001.  Subsequently he was disciplined, dismissed but reinstated.

6.	They then went on to deal with compensation and they set out correctly that under the section 149(1) of the 1992 Act where the Employment Tribunal finds that a complaint under section 146 is well-founded shall make a declaration to that effect which the Tribunal did and may make an award of compensation to be paid by the employer to the complainant in respect of the act of or failure complained of.  They found that Mr Saunders has suffered no financial loss, having been reinstated.  They were then referred to the authority of Cleveland Ambulance NHS Trust v Blane [1997] IRLR 332 and said this:

“That case is authority for an award of injury to feelings but the sum of £1,000 awarded in that case had a specific rationale linked to the applicant’s pay rate.
Mr Langton for the Applicant suggests that we should be guided by awards in discrimination cases.  This is not a case which is on a par at all with awards for race discrimination, sex discrimination and disability discrimination, all of which have emotive effects on the individual.
Mr Saunders has told us that he suffered stress from early July 2001.  He has provided no medical evidence, has had no time off for stress, he says he has had two days off for non-stress related matters.  He has also said that he did not take any medication.
The Tribunal recognises that at the time of presentation of Mr Saunders’ Originating Application he still had a disciplinary hearing hanging over him which would have involved personal anxiety and loss of face as a shop steward, which his members must have witnessed.  However, the compensation of this case must be minimal.”

And they went on to award £250.

7.	The appeal today is put simply namely that that figure is far too low and in particular Miss Melville for the Appellant highlight two matters from the decision of the Tribunal as well as referring us to recent authorities which would suggest that this figure is too low.  Firstly she submits that in relation to the citation of Cleveland there is nothing in the text of the case which suggests that the award of £1000 was indeed related to the Applicant’s pay rate.  Secondly that there is now clear authority that there should be no difference between union discrimination and other forms of discrimination in relation to the awards of compensation for injury to feelings and in particular we have been referred to the recent guidance in the case of Vento v Chief Constable of West Yorkshire [2003] IRLR 102.

8.	Let me consider those matters in a little more detail.  First of all the Cleveland case itself.  That is Cleveland Ambulance NHS Trust - Blane [1997] IRLR 332.  We have referred to that case and there is clearly no reference at all to the linkage of £1000 compensation for injury to feelings to the earnings in that case.  If one looks at the head note one can see that the Tribunal made an award of compensation for £1000 for injury to feelings plus a sum for pecuniary loss calculated on the basis of 25% of the difference between his current pay rate and that applicable to the post for which he had applied but that was the only linkage in relation to salary within that case.  The award was therefore one of the £1000.  There is unfortunately no factual material within the judgment in that case which helps at all as to what particular evidence there was in relation to injury to feelings.

9.	Vento v Chief Constable of West Yorkshire deals first of all in paragraph 53 with the approach of the courts generally in compensation matters in discrimination cases and cites with approval the judgment of Mrs Justice Smith in HM Prison Service v Johnson [1997] IRLR 162 who said at page 165: 

“(i)	 Awards for injury to feelings are compensatory.  They should be just to both parties.  They should compensate fully without punishing the tortfeasor.  Feelings of indication at the tortfeasor’s conduct should not be allowed to inflate the award.
(ii)	Awards should not be too low, as that would diminish respect for the policy of the anti- discrimination legislation.  Society has condemned discrimination and awards must ensure that it is seen to be wrong.  On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham MR, be seen as the way to “untaxed riches”.
(iii)	Awards should bear some broad general similarity to the range of awards in personal injury cases.  We do not think that this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards.
(iv)	In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind.  This may be done by reference to purchasing power or by reference to earnings.
(v)	Finally, tribunals should bear in mind Sir Thomas Bingham’s reference to the need for public respect for the level of awards made.”

10.	In paragraph 65 under “guidance” they gave a bracket for the less serious cases as between £500 and £5,000 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.  There is of course within each band considerable flexibility, allowing tribunals to fix what is considered to be fairly reasonable and just compensation in the particular circumstances of the case. 

11.	Finally and most recently a decision of this Court in the case of London Borough of Hackney v Miss Adams the judgment delivered on 6 February, Mr Justice Elias presiding.  In that case the employee had been interviewed for the post of office manager to Social Services Department by the head of its inspection unit that would have a career advance for her.  She was a UNISON shop steward.  She was told immediately that she was to be promoted and indeed she organised a party to celebrate her success and to her dismay within a matter of a few days Hackney, the employers in that case withdrew the offer.  A tribunal award of £5000 was not reduced on appeal.

12.	Dealing with compensation Mr Justice Elias first of all set out the general principles to which we have already made reference and in paragraph 10 he said this:

“There were no grounds for asserting discrimination on Trade Union grounds will justify lower awards of compensation to other forms of discrimination such as race or sex discrimination.  Each case is necessary to establish loss by focussing on a particular injury suffered.  If the injury in two cases is the same it would be just toward different levels of compensation simply because the source of the injury were different forms of discrimination.”

In paragraph 11 he continues thus:

“Sometimes such injury will be the almost inevitable concomitant of the discrimination having occurred.  For example, it can readily be assumed where someone has suffered an act of race or sex discrimination that will be its very nature have caused injury to feelings; it is demeaning to the individual and offensive to his or her dignity to be so treated.  A tribunal will readily infer some injury to feelings from the simply fact of the discrimination having occurred.  Such injury may of course be compounded by the particular manner in which the discriminatory conduct itself is made manifest.  For example, harassment over a lengthy period will plainly result in more considerable distress than a single act of discrimination and should be compensated for accordingly.  There will, however, have to be evidence of the nature of the discriminatory conduct.

By contrast, other forms of discrimination may leave the victim relatively, if not wholly, unscathed from any real distress.  For example, it is unlawful to discriminate against someone on the grounds that he or she is a non-unionist.  It seems to us that it is far from self evident that, for example, someone refused employment on those grounds will necessarily suffer any injury to feelings at all.  The status of not being a trade union member is not likely, at least in most cases, to be an essential part of an individual’s make up, or to be a characteristic which is central to a person’s sense of self respect and self esteem.  Making good the financial loss actually suffered may in such a case be adequate compensation.  Even if there is any injury to feelings, the distress is likely to be less severe than with forms of discrimination, which engage the core of a person’s being.  Of course, that is not to say that there may not be particular cases where such injury cannot be established, such as a non-unionist who for that reason suffers harassment in a trade union shop.  But it ought not readily to be assumed that injury to feelings inevitably flows from each and every unlawful act of discrimination.  In each case it is a question of considering the facts carefully to determine whether the loss has been sustained.  Some persons discriminated on trade union grounds may feel deeply hurt by that affront, particularly where union membership is an important feature of their lives; other more robust characters may consider it a matter of little consequence and suffer little, if any, distress.  Since the aim is to compensate and not to punish, the compensation to be awarded ought not to be the same in each case.”

13.	We are left in no doubt that the award in this case was too low.  Whilst we appreciate that compensation is generally a matter for a Tribunal, and that we should be loath to interfere with their discretion, we are quite satisfied that the figure in this case fell below the reasonable band that a Tribunal could have considered.  In particular they fell into error as regards the facts of the Cleveland case and also appeared to accept that union discrimination was to be treated at a lower level than other forms of discrimination.  We are also mindful of the guidance set out in Vento. 

14.	Our difficulty is whether we should deal with the matter ourselves or remit the matter back for a fresh hearing.  The clear practical problem in sending the matter back for a fresh hearing is that a new Tribunal would have to try and ascertain the feelings and the stress that the employee had suffered as at the date that he commenced these proceedings which was 3 September 2001, seeking to distinguish those feelings from the matters which related to the forthcoming disciplinary hearing that he was facing later on in September.  This would present a very real and practical difficulty for any tribunal hearing the case over two years after the events.

15.	There is a finding of fact that Mr Saunders suffered stress from early July 2001 and there is also a finding of fact that he was suffering some anxiety and loss of face as shop steward in relation to the forthcoming disciplinary hearing.  By that we understand that he was suffering anxiety and possible loss of face as at the time that he commenced these proceedings because the date of disciplinary hearing had already been fixed.

16.	Therefore there are some findings which enable us to assess the appropriate figure and having considered the matter we would take the view that a sum of £1000 should be the appropriate figure.  We will allow the appeal and substitute a compensation award of £1000 in place of the £250 awarded by the Tribunal.