Appeal No. UKEAT/0644/03/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 December 2003
Judgment delivered on 23 January 2004

Before
HIS HONOUR JUDGE ANSELL
MR B R GIBBS
MRS J M MATTHIAS

VIRGO FIDELIS SENIOR SCHOOL	APPELLANT

MR KEVIN BOYLE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR SIMON DEVONSHIRE
(of Counsel)
Instructed by:
Messrs DMH Solicitors
40 High Street
Crawley
West Sussex RH10 1BW	
For the Respondent	MS LUCY McLYNN
(Solicitor)
Messrs Bates Wells & Braithwaite Solicitors
Cheapside House
138 Cheapside
London EC2V 6BB	

HIS HONOUR JUDGE ANSELL

1	This is an appeal from a remedies decision of a London (South) Tribunal sitting on 13 June 2003, who in a decision promulgated on 24 June 2003 awarded the Respondent Mr Boyle total compensation of £47,755.

2	This decision followed a merits hearing in March 2003 which decided in a promulgated decision on 28 May 2003 that Mr Boyle had been unfairly dismissed and victimised for making a public interest disclosure.

3	That decision had held:

(i)	that Mr Boyle had been unfairly dismissed;
(ii)	that he had made a protected disclosure by writing a letter making explicit allegations against various members of the School staff to the Diocese, London Borough of Croydon and the Convent de Notre Dame de Fidelité in France;
(iii)	the School’s action in thereafter disciplining him and dismissing him for making that disclosure amounted to a detriment.

4	The remedies hearing awarded Mr Boyle:

(i)	a basic award of £750;
(ii)	compensation for loss of net wages of £1,755 based on the fact that he had obtained other employment very quickly;
(iii)	£45,000 injury to feelings which was said to include the sum of £2,460 representing Mr Boyle’s expenses.
The Tribunal declined to make an award in respect of either exemplary damages or aggravated/punitive damages.

5	The relevant parts of the Tribunal’s decision are contained in paragraphs 13 to 17:

13	“The Applicant made a claim for exemplary damages.  The basis of the Applicant's claim under this head was the conduct of the London Borough of Croydon in this matter.  The London Borough of Croydon is not a party to these proceedings, and the acts cited in support of this head of claim do not relate to the Applicant's dismissal (they either precede the disciplinary/dismissal process or post-date the Tribunal's decision).  For these reasons we find this head of claim inappropriate in the present circumstances and decline to make an award. 
14	The Applicant also made a claim for aggravated damages.  We are not aware of any statutory or case law authority which permits us to make the award in the context of an unfair dismissal or public interest disclosure claim and decline to make an award under this head.  The Respondent's conduct has been taken into account in the award for injury to feelings (below).  
15	This case was founded (in part) on s.47 Employment Rights Act 1996 (whistle- blowing).  Under s.49 of that Act the award which the Tribunal in to make to such sum as is "just and equitable" which may include an award for injury to feelings and under s49 (3) (c) reasonable expenses incurred in consequence of the act to which the complaint relates. 
16	In the present case we find that the Respondent's conduct and treatment of the Applicant as a result of his whistle blowing was a travesty of what should have been done and had resulted in grave consequences for the Applicant, his personal relationships, career, career prospects and health.  We were presented with medical evidence from the Applicant's doctor and a psychiatrist which demonstrated that the Applicant had suffered a clinical depression, largely as a result of the Respondent's treatment of him. 
17	Taking the above into account we feel that an appropriate award in this case would be £45,000 which includes the sum of £2,460 representing the Applicant's reasonable expenses.  This is intended to reflect our findings in paragraphs 11-13 of the decision promulgated on 28 May 2003 which had a direct contributory effect on the Applicant's dismissal.”

6	The School appeals this decision on a number of grounds which can be summarised thus:

(1)	The Tribunal failed to have regard to comparable awards for injury to feelings in Race/Sex Discrimination Act cases and in particular failed to have regard to the guidelines set out in Vento v Chief Constable of West Yorkshire Police (No. 2) [2003] IRLR 102.

(2)	The Tribunal failed to have regard to comparable awards in personal injury cases and in particular failed to have regard to the complex background of Mr Boyle’s clinical depression, only part of which was attributable to the School’s treatment of him after he made his protected disclosure.

(3)	The award was punitive and not compensatory and was both perverse and also was not justified with sufficient reasons.

(4)	The Tribunal failed to distinguish between non-economic losses, i.e. hurt feelings attributable to the dismissal and those feelings which were attributable to the detriment which fell short of dismissal.

7	The appeal is resisted on the grounds, firstly, that the Vento guidelines do not directly apply to a non-Discrimination Act case and that particularly in so called “whistle-blowing” cases the Tribunal have a wider discretion than in discrimination cases.  Secondly, it is argued that even if the Vento guidelines apply, that the particular circumstances of this case meant that the conduct of the School fell within the “exceptional” category within the Vento guidelines.

8	There is also a cross-appeal in relation to the Tribunal’s refusal to award both aggravated and exemplary damages and also their decision not to make any award in respect of Mr Boyle’s loss of opportunity of promotion.

9	The background facts are that Mr Boyle, who was born on 18 August 1950 qualified as a physics teacher in 1973 and thereafter taught until December 1983 when he left teaching to work as an electrical contractor.  He returned to teaching in September 1999 when he joined the School as a physics and maths teacher reporting to Dr Sodhi, the Deputy Head, who in turn reported to Sister Bernadette, the Head Teacher.  The School is a voluntary-aided school under the control of the London Borough of Croydon.  The Diocese of Southwark also has responsibilities for the School, as does the Convent de Notre Dame de Fidelité in France.

10	In early 2000 Mr Boyle became concerned about the number of matters relating to the School including issues surrounding allegations of bullying by Dr Sodhi and the suggestion that Dr Sodhi did not possess the PHD qualifications which he asserted he had.  Mr Boyle had himself been reprimanded and threatened with dismissal by Dr Sodhi.  He had complained about this incident to Mr Real, a union representative who had presented these complaints to Sister Bernadette who was unwilling to deal with these criticisms although there were complaints from 16 other members of staff in relation to the bullying.

11	Mr Boyle continued to witness situations which he felt were unacceptable including disruption of teaching because of lack of adequate cover which caused stress and unhappiness in the student body, as well as unhappiness in the staffroom.  In April 2001 he wrote to the governors asking for an interview with them and the governors’ meeting merely recorded that his letter had been seen by them and that he was to be written to.  Mr Boyle maintained he did not receive a reply until August 2001.

12	In June 2001 a female teacher left the school prior to the end of term complaining of sexual harassment from another female member of staff and Mr Boyle felt this distressing situation was the last straw and urged Mr Real to request the union to make a formal complaint to the governors about the worsening position at the School.  The union were reluctant to do this.

13	He therefore wrote a letter on 1 July 2001 outlining his discontent and making explicit allegations about various members of staff.  The letter, which Mr Boyle conceded was in places intemperately worded, was sent also to the Diocese, the London Borough of Croydon and the Convent.  The letter made complaints about the management of the School which implicated Sister Bernadette, although she was not named.  Mr Boyle never received a reply to this letter from any of the addressees.

14	On 4 September 2001, at the commencement of the autumn term, Mr Boyle was told that he faced disciplinary action for writing the letter which was described as gross misconduct.

15	There then followed a disciplinary procedure which the Tribunal in their merits decision described as patently flawed and in the remedies decision described as a travesty, particularly since Mr Boyle’s allegations were investigated by Sister Bernadette despite the fact that many of the allegations concerned her personally.

16	Mr Boyle had also sought to commence a grievance complaint against Sister Bernadette which was not properly dealt with.

17	On 5 November he received a letter from Sister Bernadette which informed him that she had completed her investigation and the matter was proceeding to a formal disciplinary hearing.  Mr Boyle was upset about matters and went to see Sister Bernadette who was in her room talking to a priest.  A heated exchange ensued which resulted in a further charge being levied against him asserting that he had intimidated Sister Bernadette in the presence of a priest.  He was suspended on 16 November.

18	A disciplinary hearing was held on 19 November and Sister Bernadette informed Mr Boyle that she had completed her investigations into his allegations and had found them all unfounded.  A further disciplinary hearing was held on 20 December when two new charges not previously put to Mr Boyle were raised.

19	The charges were then referred to the governors’ staff disciplinary committee and a disciplinary meeting was held on 25 February.  The charges laid against Mr Boyle at that meeting were:

 “…
•	That the Applicant had sent his letter of 1 July to various Parties outside the school;
•	That the Applicant had challenged Sister Bernadette’s leadership;
•	That the Applicant had made malicious statements;
•	That the Applicant had behaved in an unprofessional manner in approaching Dr Sodhi about his doctorate in a corridor in the presence of another member of staff;
•	That the Applicant had spoken inappropriately to children about his suspension;
•	That the Applicant had acted in an intimidating manner towards the Head Teacher in the presence of a priest.”

20	Mr Boyle had not seen the charges in this form before.  Mr Boyle had called four witnesses, three of whom attended the hearing but none of whose evidence was heard on that date.  The hearing was adjourned because the panel wished to hear from Mr Real who had been too ill to attend.  At the resumed hearing on 25 March neither Mr Real nor Mr Sandhu were able to attend as witnesses for the Applicant due to ill health.  The panel did not test the other witness statements presented by the School since no live witnesses were called at the meeting.

21	As Dr Sodhi had resigned from the School between the first and second parts of the disciplinary hearing, the allegations relating to him were said not to be relevant to the issues under consideration.
22	One of the panel members, Mr McMullen, a governor, had had a discussion with Sister Bernadette prior to the panel deliberating on its decision.  The Tribunal formed the view that the panel’s decision was therefore tainted by her view that Mr Boyle should be dismissed.

23	He received a letter on 28 March informing him that all the charges against him had been upheld and that he was dismissed.  He wrote and asked for the principal reason for his dismissal and this was refused.  Eventually he received a letter saying that the reasons for his dismissal were that the contents of the letter of 30 January 2002 had been upheld, that being a letter which had enclosed a pack of evidence from Sister Bernadette.

24	Mr Boyle appealed against that dismissal and once again he was not allowed to refer to any incident relating to Dr Sodhi.  All members of the appeal panel had been appointed by Sister Bernadette and the hearing was a review of procedures, not a rehearing of substantive issues.  Again Mr Finnin involved in the appeal had discussed the appeal with Sister Bernadette prior to the hearing and the panel was again tainted by her views.

25	The minutes of the formal disciplinary meeting but not disclosed to Mr Boyle prior to the appeal, neither was he sent copies of the statements in support of Sister Bernadette and Dr Sodhi.  The appeal hearing upheld the decision to dismiss.

Do the Vento principles apply to detriment cases?

26	Section 47B of the Employment Rights Act 1996 is a section within Part V of the Act, which part is headed “Protection from Suffering Detriment to the Employment”.  It provides as follows:

(1)	“A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
(2)	… this section does not apply where –
(a)	the worker is an employee, and
(b)	the detriment in question amounts to dismissal within the meaning of Part X.”

27	Section 48 of the Employment Rights Act 1996 provides that an employee may present a complaint to an employment tribunal that he has been subjected to such a detriment and the remedies are provided in Section 49 thus:

49	(1)	“Where an employment tribunal finds a complaint under section 48 well-founded, the tribunal –
		(a)	shall make a declaration to that effect, and
(b)	may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.
(2)	The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to –
(a)	the infringement to which the complaint relates, and
(b)	any loss which is attributable to the act, or failure to act, which infringed the complainant's right.
(3)	The loss shall be taken to include –
(a)	any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and
(b)	loss of any benefit which he might reasonably be expected to have had but for that act or failure to act.
(4)	In ascertaining the loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.”

28	Other rights not to suffer detriment are contained in the other sections of Part V in relation to health and safety, Sunday working for shop and betting workers, working time cases, trustees of occupational pension schemes, employee representatives, employees exercising the right to time off work for study or training, leave for family and domestic reasons, tax credits and flexible working.

29	These provisions closely follow protection that had been given to trade union members in the Trade Union and Labour Relations (Consolidation) Act 1992.  Section 146 of that Act provided:

146	“Action short of dismissal on grounds related to union membership or activities

(1)	An employee has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the purpose of - 
(a)	preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so, 
(b)	preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, or 
(c)	compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions. 
(2)	In subsection (l) (b) "an appropriate time" means -
(a)	a time outside the employee's working hours, or 
(b)	a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union; 
and for this purpose "working hours", in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work. 
(3)	An employee also has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the purpose of enforcing a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments. 
(4)	For the purposes of subsection (3) any deduction made by an employer from the remuneration payable to an employee in respect of his employment shall, if it is attributable to his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, be treated as [a detriment to which he has been subjected as an individual by an act of his employer taking place] for the purpose of enforcing a requirement of a kind mentioned in that subsection. 
(5)	An employee may present a complaint to an employment tribunal on the ground that he has been subjected to a detriment by his employer in contravention of this section.”

30	The remedies provision was contained in section 149:

149	“Remedies
(1)	Where the employment tribunal finds that a complaint under section 146 is well-founded, it shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure complained of. 
(2)	The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the infringement complained of and to any loss sustained by the complainant which is attributable to the [act or failure] which infringed his right.
(3)	The loss shall be taken to include –
(a)	any expenses reasonably, incurred by the complainant in consequence of the [act or failure] complained of, and 
(b)	loss of any benefit which he might reasonably be expected to have had but for that act or failure.
(4)	In ascertaining the loss, the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or Scotland.”

31	The remedies provisions in respect of detriment are to be contrasted with the remedies available in respect of sex, race or disability discrimination.  For example, section 65 of the Sex Discrimination Act 1975 provides that:

65	“Remedies on complaint under section 63
(1)	Where an employment tribunal finds that a complaint presented to it under section 63 is well-founded the tribunal shall make such of the following as it considers just and equitable –
(a)	an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;
(b)	an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court or by a sheriff court to pay to the complainant if the complaint had fallen to be dealt with under section 66.”

Section 66 (4) provides that:

66	(4)	“For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head.”

32	Finally, in respect of unfair dismissal, the amount of compensation is governed by section 123 of the Employment Rights Act 1996 which provides that:

123	“Compensatory award
(1)	Subject to the provisions of this section and sections 124, 126, 127 and 127A (1), (3) and (4) the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.
(2)	The loss referred to in subsection (1) shall be taken to include- 
(a)	any expenses reasonably incurred by the complainant in consequence of the dismissal, and
(b)	subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal.
(3)	The loss referred to in subsection (1) shall be taken to include in respect of any loss of- 
(a)	any entitlement or potential entitlement to a payment on account of dismissal by reason of redundancy (whether in pursuance of Part XI or otherwise), or
(b)	any expectation of such a payment,
only the loss referable to the amount (if any) by which the amount of that payment would have exceeded the amount of a basic award (apart from any reduction under section 122) in respect of the same dismissal.
(4)	In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.”

33	This provision for compensation applies to both dismissals which are unfair pursuant to section 98 and also automatic unfair dismissals, e.g. under section 103A – Protected Disclosure – which provides that:

103A	“Protected disclosure
An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

34	This court has recently confirmed that the Employment Tribunals have no power under section 123 to award compensation for non-economic losses, i.e. injury to feelings in unfair dismissal cases.  See Dunnachie v Kingston Upon Hull CC [2003] IRLR 394, confirming the principle in Norton Tool Company Ltd v Tewson [1972] IRLR 86.

35	In the Vento case the Court of Appeal gave guidance with regard to the level of awards for injury to feelings in discrimination cases.  Ms Vento had joined the West Yorkshire Police as a Probationary Constable in December 1995.  She had a long-held ambition to join the police force but was unable to do so until the height requirements were relaxed in that year.  After her marriage broke down in 1996 she claimed there was a change in attitude towards her from her superiors alleging that they began to show an unwarranted interest in her private life, that they bullied her and subjected her to sexual harassment, that they placed her under undue scrutiny.  She was not confirmed in post at the end of her probationary period in December 1997 and was therefore dismissed.  One of the chief grounds given for this was that she had gave a dishonest response to a superior officer.  She also claimed that she had been discriminated against on the grounds of sex.

36	The Tribunal’s award of compensation of £257,844 included £65,000 for injury to feelings including £15,000 by way of aggravated damages and £9,000 for personal injury.  The award of £50,000 for injury to feelings reflected the Tribunal’s finding that she had been subjected to bullying from her superiors following the breakdown of her marriage, that this contributed to clinical depression and that she had then had the shock and disappointment of being dismissed and gone through a Tribunal hearing at which her private life had been subjected to minute scrutiny.  She also lost a satisfying and genial career.  The additional award of £15,000 for aggravated damages reflected the Tribunal’s finding that the Chief Constable and his officers had acted throughout in a high-handed manner and that their attitude was one of institutional denial.

37	The EAT reduced the award for injury to feelings including aggravated damages from £65,000 to £30,000 and the Court of Appeal awarded £18,000 for injury to feelings plus £5,000 aggravated damages leaving the damages for psychiatric injury at £9,000.  Mummery LJ gave the general guidance in paragraphs 65 to 68 of the decision:

65	“Employment tribunals and those who practise 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 most 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. 
66	There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case. 
67	The decision whether or not to award aggravated damages and, if so, in what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled. 
68	Common sense requires that regard should also he had to the overall magnitude of the sum total of the awards of compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage.  In particular, double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage. The extent of overlap will depend on the facts of each particular case.”

38	Before us Mr Devonshire for the School argues that the Vento guidelines should also apply to detriment cases and that the Tribunal’s award for injury to feelings of around £42,500 should therefore be drastically reduced.

39	In Cleveland Ambulance NHS Trust v Blane, this Court (Judge Peter Clark) presiding, held that in a complaint or action short of dismissal contrary to section 146 (1) of the Trade Union and Labour Relations (Consolidation) Act 1992, the Tribunal had power under section 149 (2) to award compensation for injury to feelings.  At page 858H Judge Clark said thus:

149	(2)	“However, there is a significant difference.  Section 149 (2) adds the words: “having regard to the infringement complained of and…”  It seems to us that those words grant the industrial tribunal a power to award compensation over and above the pure pecuniary loss suffered by the applicant.  Given the scope for awards to complainants who have suffered by way of sex or race discrimination to reflect injury to feelings, we see no reason in principle why the words of the section cannot extend to such award.  Put another way, what do the words add to the normal formulation of available pecuniary loss claims for unfair dismissal, if not to include an award for non-pecuniary loss including injury to feelings?
	(3)	It is not fatal to our construction that the Sex Discrimination Act 1975 and the Race Relations Act 1976 contain specific references to awards for injury to feelings, and section 149 (2) of the Act of 1992 does not.  Those provisions are inserted “for the avoidance of doubt”, not to create an otherwise otiose head of claim.
	(4)	We are unimpressed by the argument advanced by the employer in National Coal Board v Ridgway [1987] ICR 641, and implicitly adopted by Ms Pitt before us.  It is nothing to the point that an award for injury to feelings cannot be recovered in a wrongful dismissal or unfair dismissal claim.  They are different claims, compensated in different ways.  We do not accept that a complaint under section 146 (1) of the Act of 1992 can simply be categorised as less serious and therefore cannot allow of a head of compensation not provided for in claims of unfair dismissal or wrongful dismissal.  Apart from the different wording of the section, the intention behind it is clear; an employee who is unfairly dismissed will normally suffer pecuniary loss, and that, Parliament has decided, will adequately compensate him for the wrong.  In a case of action short of dismissal it may very well be that he can point to no pecuniary loss; nevertheless, Parliament has decided that he should be able to recover financial compensation “having regard to the infringement complained of.”  That must, in our judgment, include injury to feelings occasioned by the unlawful act.”

40	Thus, the Cleveland case makes it clear that a distinction has to be drawn in trade union cases between action short of dismissal where compensation for injury to feelings will be allowed as opposed to those cases where the detriment complained of as being dismissal where an award for injury to feelings cannot be recovered.

41	In the Dunnachie case Burton J having referred to the Cleveland decision went on thus:

14	“There is a similar distinction to be found in the wording of s.49 of the 1996 Act, which provides a remedy where a complaint has been proved that an employee has been subjected to a detriment in the context of his having made complaints or claims relating to health and safety, Sunday working and time off for reasons dealt with in ss.44, 45, 46, 47, 47A and 47C of the 1996 Act.  In such circumstances s.49(2) provides in material terms that:
‘The amount of the compensation awarded shall be such as the Tribunal considers just and equitable in all the circumstances having regard to –
(a)	the infringement to which the complaint relates, and
(b)	any loss which is attributable to the act, or failure to act, which infringed the complainant’s right.’
In such circumstances too there may be no economic loss suffered.  Once again there are clear words following a wider ambit of recovery.”

42	In London Borough of Hackney v Adams [2003] IRLR 402 Elias J giving the judgment of this court applied the Vento guidelines to trade union discrimination cases.  At paragraph 9 he said thus:

9	“Personal injury comparisons
Again, although the tribunal made no express reference to any specific award in personal injury cases, the reference to the Tchoula case in paragraph 39.3 of their decision indicates that they had well in mind that their award should have 'a broad general similarity' to the range of awards in such cases.  In our view, there is no need for a tribunal expressly to seek to locate where it would place the facts of the case before it in the framework of the awards given for injuries in personal injury cases.  The court in Vento approved certain observations of Smith J in HM Prison Service v Johnson [1997] IRLR 162, when she said: -
'Awards should bear some general broad similarity to the range of awards in personal injury cases. We do not think that this is done by reference to any particular type of personal injury award, rather to the whole range of such awards.'
10	Compensation depends on the ground of discrimination 
As to the third ground, in our view, there are no grounds for asserting that discrimination on trade union grounds will justify lower awards of compensation to other forms of discrimination, such as race or sex discrimination.  In each case it is necessary to establish the loss by focusing on the particular injury suffered.  If the injury in two cases is the same, it would not be just to award different levels of compensation simply because the source of the injury was different forms of discrimination.  Ms Tether referred us in this context to certain observations of Sir Robert Car- swell, giving judgment in the Northern Court of Appeal in McConnell v Police Authority of Northern Ireland [1997] IRLR 625.  He held that the employment tribunal had been wrong to hold that the award of compensation for injury to feelings in cases of political or religious discrimination should be greater than the awards made for other forms of discrimination in the following terms:

'In plain language, the tribunal is there saying that the feelings of persons who are the subject of religious or political discrimination in Northern Ireland merit higher compensation than those of persons subject to the same discrimination in Great Britain on grounds of sex or race.  I am unable to accept that approach.  Discrimination is equally pernicious, whether it is on religious grounds, sexual grounds or racial grounds, and those who suffer from it on any of these grounds must feel equally distressed and hurt.  I can discern no basis for saying that the distress and hurt caused by it varies with the type of discrimination rather than with the treatment of the victim.'
11	That is not to say, however, that it will in all cases be just as easy to establish injury to feelings in relation to one form of discrimination as another.  We doubt whether that can be right. 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 by 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 simple 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.
12	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 against 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.”

He then went on to apply the Vento guidelines to that case and approved the Tribunal’s award of £5,000 although stating that it was on the high side.

43	In a well-constructed and interesting argument Miss McLynn seeks to persuade us that the Vento guidelines do not apply to the assessment of loss under section 49 Employment Rights Act 1996 and relied on the following arguments:

(a)	Under the Sex Discrimination Act 1975, in common with other discrimination litigation, as we have already pointed out, it is expressly stated that damages must correspond with the award which would be made in the County Court.  Paragraph 47 of Vento refers to:

“…concern as to whether some recent tribunal awards in discrimination cases are in line with general levels of compensation recovered in other cases of non-pecuniary loss, such as general damages for personal injuries, malicious prosecution and defamation.”

However, there is no similar restriction under section 49 of the Employment Rights Act 1996 where the Tribunal are required to have regard to the infringement to which the complaint relates; and any loss which is attributable to the act or failure to act which infringed the complainant’s rights.  She argues that, therefore, the nature of the infringement taken by itself, irrespective of the injury to feelings, may have an impact on the level of damages.

(b)	She argues that injury to feelings is only one element of non-pecuniary compensation in discrimination legislation where the cases have established that an employee in discrimination case is also able to claim aggravated damages and damages for personal injury, whereas, she argues, there is no such ability in a ‘whistle-blowing’ case, where the separate heads of loss need to be subsumed within an award for injury to feelings as part of the employee’s loss.  She argues that in this case both the Appellant’s conduct and the psychiatric harm caused to the Respondent, which was set out in a psychiatric report, were taken into account by the Tribunal.

(c)	She argues that it is Parliament’s wish to provide additional protection for those raising concerns in the public interest who have in effect acted in a pro-active way, rather than those who have been subjected to detriment in a reactive way, because of their race, sex or disability.  She reminds us that the cap on unfair dismissal damages is only disapplied by section 124 (1) (a) ERA 1996 in health and safety and ‘whistle-blowing’ cases.  She argues, therefore, that it is Parliament’s wish that a Tribunal should mark its disapproval of employer’s conduct in a ‘whistle-blowing’ case even more strongly than in a discrimination case since it is not merely the case that an employee has behaved unlawfully but that an employee has taken appropriate steps to alert the appropriate people to unlawful conduct by the employer and the employer then compounds any earlier wrongdoing by further unlawful conduct towards the ‘whistle-blowing’ employee.

(d)	In answer to the criticism that section 149 TULR(C)A 1992 has almost identical wording to section 49 and that it did not seem to be argued either in the Cleveland or the Hackney cases, that the nature of the offence taken by itself should result in increased damages, she argues that the main concern in Cleveland was whether damages for injury to feelings could be awarded at all in this type of case and in the Hackney case the court was primarily concerned to reject the suggestion that trade union discrimination justified lower awards than other forms of discrimination.

44	Whilst at first sight these arguments have considerable attraction, we must reject them for the following reasons:

(a)	to compensate simply for the offence rather than the resulting injury or psychiatric damage would seem to offend against the general principle which was repeated in the Hackney case, that “the aim is to compensate and not to punish.”  Mr Devonshire reminds us that whilst section 49 deals with the level of awards in ‘whistle-blowing’ cases, it also covers detriment for less serious reasons, as we have set out above.  Clearly the nature of the offence or its repetition may have impact on the level of the award for injury to feelings and indeed the Vento guidelines set out in paragraph 65 of Mummery LJ’s judgment are primarily based on the nature of the discrimination or its repetition, the argument being that the worse the offence the more likely it is that the victim will suffer injury to feelings.  Indeed, the reference in section 49 (2) (a) to the Tribunal having regard to the ‘infringement’ to which the complaint relates appears to us to be no more than a reminder to Tribunals to have some regard to the nature of the complaint when assessing the resulting loss simply to state what might be regarded as the obvious, namely more serious offence, the more likely it is that feelings have been injured.

(b)	Secondly, detriment suffered by trade union members was clearly accepted in the Hackney case as another species of discrimination and it is therefore important as far as possible there is consistency in awards throughout all areas of discrimination adopting the principles set out by Smith J in Armitage, Marsden and HM Prison Service v Johnson [1997] IRLR 162 where, at paragraph 27 she said thus:

27	“We summarise the principles which we draw from these authorities:
(1)	Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor.  Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. 

(2)	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 Lord Bingham's phrase, be seen as the way to untaxed riches. 
(3)	Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award; rather to the whole range of such awards. 
(4)	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.
(5)	Finally, tribunals should bear in mind Lord Bingham's reference to the need for public respect for the level of awards made.”

	We see no reason for detriment under section 47B to be treated differently; it is another form of discrimination.

(c)	Thirdly, whilst section 49 (2) refers to any loss which in common with other areas of discrimination would allow Tribunals to make awards for injury to feelings, personal injury, i.e. psychiatric damage, and aggravated damages; and whilst the Tribunal in this award made reference to the Appellant’s conduct and the psychiatric harm suffered by the Respondent, the award of £42,500 was still expressed at the conclusion of the judgment to represent injury to feelings; a figure far in excess of the top range of £15 - £25,000 set out in Vento.

45	Therefore in conclusion, on this aspect of the case, we are firmly of the view that the Tribunal were in error in not having regard to the Vento guidelines, albeit that detriment suffered by ‘whistle-blowers’ should normally be regarded by Tribunals as a very serious breach of discrimination legislation.

The Level of Award for Injury to Feelings

46	Assuming the Vento guidelines apply, as we have indicated, already Mr Devonshire submits that the award in this case should fall within the Vento middle band, i.e. between £5,000 and £15,000 and suggests that Mr Boyle’s experience was no different to that of many ordinary unfair dismissal victims, particularly bearing in mind the court’s duty to have general regard to the range of awards in personal injury cases.

47	He argues that the Tribunal in referring to the “grave consequences for the Applicant, his personal relationships, career, career prospects and health” failed to distinguish between the hurt failings attributable to the dismissal and attributable to the detriments falling short of dismissal, and also did not have regard to the fact that Mr Boyle had found an equivalent job within a month of his dismissal, and had concluded that his decision to leave both that new job and the teaching profession were voluntary acts that could not be “linked to his dismissal from the School”.

48	Also, the Tribunal in referring to Mr Boyle’s clinical depression suffered “largely as a result of the Respondent’s treatment of him” ignored the features set out in the psychiatric report placed before the Tribunal.  Mr Boyle had reported “unbearable” environment before his disclosure was even made and had experienced problems at his new school.

49	He reminds us that Mr Boyle did not seek a separate award for personal injury in his Schedule of Loss.  He seeks to compare this case with the Applicant in Vento where an eventual award of £18,000 for injury to feelings was made by the Court of Appeal to someone who had been subjected to unwarranted interest in her private life, bullying, sexual harassment and undue scrutiny for over more than one year; and in Johnson where an award of £21,000 compensation for injury to feelings was made to a black prison officer who, for a period just under two years, was ostracised by his colleagues after objecting to the manhandling of a black prisoner by the prison officers, being subjected to racist remarks and false accusations, together with other acts of discrimination which the Tribunal had described as a campaign of appalling treatment.

50	Miss McLynn argues that if the Vento guidelines do apply then this court in re-assessing the award under those guidelines should take the view that it was “an exceptional case”, allowing us to exceed the normal maximum of £25,000.  She repeats her arguments in relation to the seriousness of ‘whistle-blowing’ detriment and more so in this case, bearing in mind the appalling treatment Mr Boyle had to suffer from July 2001 when he wrote the letter until May 2002 when the disciplinary process had been completed; a process which the Tribunal described as a “travesty” of what should have been done.

51	In paragraph 13 of her written submissions she sets out 20 separate areas of detrimental treatment of Mr Boyle prior to the decision to dismiss him and she makes particular reference to the position of Sister Bernadette, the head teacher, throughout this process, whose evidence in the merits hearing the Tribunal found to be “unconvincing”.  It was clear that the Tribunal accepted Mr Boyle’s submissions that Sister Bernadette had lied about a particular meeting taking place with him.

52	She argues that there was clear evidence in the Tribunal hearing that there was a prolonged course of conduct over many months calculated to make Mr Boyle’s position untenable and to avoid in any way acknowledging the legitimate concerns that he had raised which were of a very serious nature.  For example, a music teacher had fallen to her death from the School roof and another teacher had resigned after an incident relating to sexual harassment.
53	It is also clear that the extract from his GP records presented to the Tribunal made it abundantly clear that there was a deterioration in his health within a few weeks of his July letter which had continued throughout the next few months.  By November 2001 the GP’s notes record that Mr Boyle appeared to be experiencing a major depressive episode, reactive in nature.

54	She argues that the Tribunal also took into account Mr Boyle’s evidence that he had suffered difficulties in his new job because colleagues were wary of him because of their knowledge in the way he had been treated because he was a ‘whistle-blower’ and that his career was in his view ruined because he no longer had the confidence as a result of the experiences suffered at the hands of the employers.

55	We agree with Miss McLynn that this was a very serious case meriting a very high award; and whilst we are not prepared to say that it falls outside the normal guidelines, it is appropriate that we reflect as far as possible the Tribunal’s view of the case, clearly expressed in both the merits and the remedies decision.

56	We would therefore propose to make an award for injury to feelings of £25,000.  There being no separate head of claim for psychiatric damage, we make no separate award under this head.

Aggravated Damages

57	Miss McLynn argues that if losses within ‘whistle-blowing’ detriment cases are to be assessed in a similar way to other discrimination cases, then in the appropriate case aggravated damages should also be available, particularly taking into account the express statutory mandate to consider “the infringement to which the complaint relates” and in the light of the School’s conduct towards Mr Boyle described as a “travesty”.  She submits that this is a suitable case for a substantial award of aggravated damages.

58	Mr Devonshire submits that in the light of the development of case law in this area any element of aggravation ought to be taken into account in reckoning the extent of the injury to feelings and suggest that the Vento guidelines do in fact make allowance for such aggravation in that the more serious the discrimination the more likely it is that there has been an element of aggravated conduct.

59	In the Johnson case this court approved the Tribunal award of £7,500 aggravated damages.  At paragraph 40 Smith J said thus:

40	“In Rookes v Barnard at p.1221, Lord Devlin said:
'Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives or conduct of the defendant where they aggravate the injury done to the plaintiff.  There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity or pride.  These are matters which the jury can take into account in assessing the appropriate compensation.' 
We consider that, as a matter of principle, aggravated damages ought to be available to plaintiffs or applicants for the statutory torts of sex and race discrimination.  Damages are at large and, at least so far as direct discrimination is concerned, the torts may be sufficiently intentional as to enable the plaintiff to rely upon malice or the defendant's manner of committing the tort or other conduct as aggravating the injury to feelings.  Although there is as yet no direct authority to support this proposition, the Court of Appeal has assumed that aggravated damages are available in discrimination cases: see Alexander v Home Office and Noone's case, supra.  Also in Ministry of Defence v Meredith [1995] IRLR 539, the availability of aggravated damages was conceded by Treasury Counsel before the EAT in a sex discrimination case.  We are satisfied that aggravated damages are available in discrimination cases. 
41	We turn to deal with Lord Meston's submission that, even if available, the award of aggravated damages was excessive.  He cited the case of W v Meah [1986] 1 AER 935, in which Woolf J said that aggravated damages must be moderate.  However, that case is not of any great assistance to us as no separate award was made.
42	It seems to us that there were here factors which entitled the tribunal to make an award of aggravated damages.  In particular they identified the third appellants' conduct of the investigation of the complaints of race discrimination.  The tribunal described this as a travesty of what it should have been.  Instead of providing the respondent with a remedy for the wrongs which he had suffered, the third appellants added to his injury by attributing all his problems to his own defects of personality.  We think that this was a true case of aggravation: a case where the appellant's actions rubbed salt in the respondent's wounds.
43	Lord Meston submitted that features of mitigation could and should be taken into account in reduction of aggravated damages, if any.  We agree, and we observe that the tribunal accepted as mitigation that the Prison Service had sought to learn from the circumstances of this case.  However, we would think that the greatest mitigation would have been an apology, which we are told has never been offered. 
44	There is very little authority on the quantum of aggravated damages.  We have to ask ourselves whether the 7 award of £7,500 reveals an error of law or is manifestly excessive.  Here again, we say that, if left to ourselves, we would probably have awarded somewhat less.  But we are unanimously of the view that this award is not outside the bracket of reasonable awards and is not so high as to permit us to interfere. 
45	Finally, we deal with Lord Meston's submission that the award is too high in total.  We cannot accept this submission.  We do not detect any element of overlap or double recovery.  We think that both awards are generous but within the appropriate bracket for such a serious case.  Added together, the total remains an appropriate result. 

60	In McConnell v Police Authority for Northern Ireland [1997] IRLR 625 the Northern Ireland Fair Employment Tribunal held that the employers had unlawfully discriminated against Mr McConnell on the grounds of his religious belief and awarded £10,000 for injury to feelings and a further £2,500 by way of aggravated damages.  At paragraph 19 Carswell LCJ giving the judgment of the court said thus:

19	“It follows from these principles that an award of aggravated damages should not be an extra sum over and above the sum which the tribunal of fact considers appropriate compensation for the injury to the claimant’s feelings.  Any element of aggravation ought to be taken into account in reckoning the extent of the injury to his feelings, for it is part of the cause of that injury.  It should certainly not be treated as an extra award which reflects a degree of punishment of the respondent for his behaviour.  If Smith J intended to express approval of any different approach in Armitage, Marsden and HM Prison Service v Johnson [1997] IRLR 162, where separate awards were made for injury to feelings and for aggravated damages, I should not find it possible to agree with that decision.”

61	In ICTS (UK) Limited v Tchoula [2000] IRLR 643 Judge Peter Clark giving the judgment of this court, having been referred to the passage in McConnell (to which we have just made reference) said this:
13	“Mr Martin submits that the tribunal failed to apply the correct principles in making an extra award of aggravated damages to the applicant over and above that for injury to feelings.  There was no finding by the tribunal that the respondent had acted maliciously towards the applicant.  Following McConnell, paragraph 26, it cannot be said, at the highest, that the respondent had conducted the tribunal proceedings in other than an honest, if unfounded or even misguided, advancement of its case. There is no explanation in the tribunal's reasons as to why the respondent has been ordered to pay £5,000 aggravated damages: Meek v City of Birmingham District Council [1987] IRLR 250. 
Dealing with those points, it is of interest to note that tribunals sometimes include an element of aggravated damages in their award for injury to feelings (see, e.g. Williams and Chan above); sometimes the awards are expressed separately.  In our view, that is a matter of form rather than substance.  However expressed, the principle stated by Carswell LCJ at paragraph 19 of McConnell is correct.  We do not understand Smith J to have been saying anything different in Armitage.  The first question must always be, do the facts disclose the essential requirements for an award of aggravated damages?”

62	Finally, in Vento, where the decisions in Johnson and Tchoula appear to have been cited with approval, although McConnell was not referred to in the judgment, at paragraph 67 the court stated that the decision whether or not to award aggravated damages must depend on the particular circumstances of the discrimination and the way in which the complaint of discrimination has been handled, before awarding £5,000 for aggravated damages.

63	Mr Devonshire submits that at the beginning of paragraph 65 of Vento the court refers to identifying “three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury” and submits that the absence of a mention at that stage of aggravated damages suggests that the element of aggravation can be included in the compensation for injury to feelings adopting the McConnell approach.  However, as we have already indicated, there is shortly afterwards a distinct and separate reference to aggravated damages and we do not accept that such an award is now subsumed into the Vento guidelines.  In this case the Tribunal were in error in coming to the conclusion that they did not have the authority to make an award of aggravated damages.

64	It is clear from this Tribunal’s decision that had they the power they would have made such an award and indeed their use of the word “travesty” is an echo of the way in which the employer’s conduct was described by Smith J in Johnson, together with the absence of any apology or mitigation.  Indeed there were before the Tribunal two documents: a copy of a letter from the Chair of Governors and a copy of a press release from the London Borough of Croydon, following the merits hearing which showed not a jot of regret or remorse.  Indeed the Governors described the original disclosure letter as “totally reprehensible, unprofessional and unethical”.

65	Adopting the Tribunal’s findings of fact with regard to the School’s conduct, we are of the view that a figure of £10,000 by way of aggravated damages should be awarded.

Exemplary Damages

66	The Tribunal held that as the London Borough of Croydon was not a party to the proceedings and the acts cited in support of this head of the claim either preceded the disciplinary/dismissal process or post-dated the Tribunal’s decision, they could not award exemplary damages.  The case had been presented by Mr Boyle on the basis that the School was a servant of the Government, given that they were under the control of the local authority, the London Borough of Croydon; that the Borough failed to respond to the ‘whistle-blowing’ letter, advised Sister Bernadette to carry out the investigation into Mr Boyle’s allegations against herself and generally had been very involved and informed at all stages of the dismissal process, as well as being involved in the press release after the Tribunal proceedings, to which we have already made reference.

67	In the well-known case of Rookes v Barnard [1964] AC 1129, the House of Lords identified the two circumstances in which exemplary damages might be available, namely (1) in the case of oppressive arbitrary or unconstitutional action by the servants of the Government and (2) where the defendant’s conduct had been calculated by him to make a profit for himself.  They defined those damages where the object was to punish or deter and which were distinct from aggravated damages, whereby the motives and conduct of the defendant aggravating the injury to the plaintiff would be taken into account in assessing compensatory damages.  Lord Devlin made it clear in the course of his speech at page 412D-I that the fact that the injury to a claimant had been aggravated by the malice or by the doing of the injury would not normally be justification for an award of exemplary damages, aggravated damages would be sufficient in that type of case.

68	In Cassell & Co Ltd v Broome [1972] 1 AER 801 the House of Lords gave further consideration as to whether the first category of the exemplary damages was limited to servants of the Government.  Lord Hailsham at page 829H said this:

“As regards the meaning of the particular categories, I have come to the conclusion that what Lord Devlin said was never intended to be treated as if his words were verbally inspired, and much of the criticism of them which has succeeded reports of the case has been based on interpretations which are false to the whole context and unduly literal even when taken in isolation from it.
The only category exhaustively discussed before us was the second, since the first could obviously have no application to the instant case.  But I desire to say of the first that I would be surprised if it included only servants of the government: in the strict: sense of the word.  It would, in my view, obviously apply to the police, despite A-G for New South Wales v Perpetual Trustee Co Ltd, and almost as certainly to local and other officials exercising improperly rights of search or arrest without warrant and it may be that in the future it will be held to include other abuses of power without warrant by persons purporting to exercise legal authority.  What it will not include is the simple bully, not because the bully ought not to be punished in damages, for he manifestly ought, but because an adequate award of compensatory damages by way of solatium will necessarily have punished him.  I am not prepared to say without further consideration that a private individual misusing legal powers of private prosecution or arrest as in Leith v Pope, where the defendant had the plaintiff arrested and tried on a capital charge, might not at some future date be assimilated into the first category.  I am not prepared to make an exhaustive list of the emanations of government which might or might not be included.  But I see no reason to extend it beyond this field, to simple outrage, malice or contumelious behaviour.  In such cases a properly directed jury will not find it necessary to differentiate between what the plaintiff ought to receive and the defendant ought to pay, since the former will always include the latter to the extent necessary to vindicate the strength of the law.”
Lord Reid put the position thus at page 838C:

“Lord Devlin's first category is set out in the passage where he said: 
'The first category is oppressive, arbitrary or unconstitutional action by the servants of the government.  I should not extend this category,-I say this with particular reference to the facts of this case,-to oppressive action by private corporations or individuals.' 
This distinction has been attacked on two grounds; first. that it only includes Crown servants and excludes others like the police who exercise governmental functions but are not Crown servants and, secondly, that it is illogical since both the harm to the plaintiff and the blameworthiness of the defendant may be at least equally great where the offender is a powerful private individual.  With regard to the first I think that the context shows that the category was never intended to be limited to Crown servants.  The contrast is between 'the government' and private individuals.  Local government is as much government as national government, and the police and many other persons are exercising governmental functions.  It was unnecessary in Rookes v Barnard to define the exact limits of the category.  I should certainly read it as extending to all those who by common law or statute are exercising functions of a governmental character.”

69	In A.B. and Others v South West Water Services Ltd [1993] QB 507 a quantity of aluminium sulphate was accidentally introduced into the drinking water system at a water treatment works operated by a water authority.  The plaintiffs, some 180 of the authority’s customers, brought actions against the defendants, the authority’s successor under the Water Act 1989 alleging inter alia nuisance, negligence and breach of statutory duty and claiming compensation in respect of injuries sustained as a result of drinking the contaminated water.

70	An issue arose as to whether the water authority was a public body such as might attract a claim for exemplary damages and also whether damages could be awarded in an action for nuisance, breach of statutory duty or negligence.  The Court of Appeal held that exemplary damages were not available in respect of those causes of action for which such damages had not been awarded prior to 1964 and that since the plaintiffs’ causes of action lay in public nuisance and negligence, for which no such award had been made before that date, the claim for exemplary damages was not available to them.

71	Further, since the authority had exercised powers and duties of a nationalised body, engaged in the commercial supply of water, not functions of an executive or governmental nature, and since the plaintiffs had not particularised any conduct which demonstrated the simple calculation by the authority to obtain any benefit from its acts which exceeded any compensatory damages for which it might be liable to the plaintiffs, the claim did not in any event come within the categories for which exemplary damages might be awarded.

72	On that basis, this court held in Deane v London Borough of Ealing [1993] IRLR 209 that exemplary damages could not be awarded under the Race Relations Act 1976, being a statutory tort created after 1964, i.e. after the Rookes v Barnard decision.

73	In Kuddus v Chief Constable of Leicester Constabulary [2002] 2 AC 122 the plaintiff had reported to the police that property had been stolen from his flat.  A police constable ensured him that the matter would be investigated but subsequently that constable forged the plaintiff’s signature on a statement purporting to be a withdrawal by the plaintiff of his complaint.  The investigation accordingly ceased.  The plaintiff brought an action against the defendant Chief Officer of Police on the grounds of his vicarious liability for the constable’s misfeasance in public office and claimed inter alia exemplary damages.

74	The House of Lords held that whether exemplary damages could be awarded on the grounds of oppressive, arbitrary or unconstitutional action by a public officer depended on the features of the officer’s behaviour rather than on the precise cause of action sued on and the fact that misfeasance in public office was not a cause of action that had been accepted before 1964 as justifying an award of exemplary damages did not preclude the plaintiff’s claim.

75	At first sight this would seem to open up the possibility of exemplary damages being awarded by Tribunals provided the Rookes v Barnard conditions were satisfied and that appears to be the view of the current authors of Harvey (see paragraph L534).

76	In the course of argument before their Lordships it was argued on behalf of the Chief Constable that the Rookes v Barnard principle should not be enlarged as to give the Tribunals power to award exemplary damages in the case of statutory torts, created for example under race or sex discrimination legislation.

77	The matter was taken up briefly by Lord Mackay in his speech at paragraph 46 where he said thus:

46	“I add some further considerations in respect of legislation such as the discrimination legislation and the data protection legislation.  Exemplary damages would be available only if the legislation expressly authorises exemplary damages in relation to any particular breach.”

At paragraph 92 Lord Hutton in raising the issue of whether exemplary damages could be awarded under discrimination legislation, reserved his opinion “until the matter arises directly for decision”.

78	For our part we would venture to suggest that once the cause of action test no longer exists and the Rookes v Barnard test becomes fact sensitive rather than cause of action sensitive we see no reason why in principle exemplary damages could not be awarded, provided that the other conditions are made out.  Clearly in the majority of cases aggravated damages would be sufficient to mark the employer’s conduct.

79	On the facts of this case there are also further difficulties.  In the findings on liability the Tribunal had found that the School was a voluntary-aided school under the control of the London Borough of Croydon.  We agree that the presence or otherwise of the London Borough of Croydon in the action was irrelevant.  The question to be decided was whether the School (i.e. the Governors) were acting as servants or agents exercising executive power derived from the government, central or local. 

80	Miss McLynn sought to highlight the various pieces of evidence before the Tribunal which demonstrated the proximate relationship between the London Borough of Croydon and the School, which included the requirement under the School’s disciplinary procedure for them to seek consultation and advice from the London Borough of Croydon where disciplinary procedures could lead to dismissal, and the subsequent advice received that Sister Bernadette was a proper person to carry out the investigation.

81	Whilst we have not found this an easy issue, we conclude that the School in exercising their disciplinary powers were not acting as servants or agents of the executive, even at a local level.  Further, whilst the actions of the School in dealing with Mr Boyle were criticised quite properly by the Tribunal, there was in our view not sufficient before them to enable them to say that this was oppressive, arbitrary or unconstitutional action.

82	Thus, although for rather different reasons, we would not allow the appeal on this point.

Loss of Future Promotional Opportunity

83	Mr Boyle had given evidence to the Tribunal at the hearing on remedies that he would have hoped to progress to become head of department after three years teaching and to deputy head status in 7 or 8 years time.  His ambitions were backed up by the fact that he had previously worked as Head of Engineering Science and Head of House.  He had contended that although he had chosen to resign from his new job and leave the teaching profession it was because his experience at the hands of the opponents had left him constantly stressed.  The Tribunal declined to make any award as “we are unable to assess whether, when or at what salary, the Applicant might have achieved promotion.”

84	In our view, the decision that the Tribunal took was one that was open to them on the facts.  They clearly had in mind that Mr Boyle did not have a continuous employment history as a teacher and had returned to work after some 16 years in industry; and had also found that his decision to leave the teaching profession was a voluntary act which could not be linked to the dismissal from the School’s employment.

85	We can find no error in the Tribunal’s approach on this issue.

86	For the reasons set out above we would reduce the award to Mr Boyle to £37,460, comprising loss of injury to feelings of £25,000, aggravated damages of £10,000 and £2,460 representing his reasonable expenses.  This is in addition to the basic award of £250 and loss of wages of £1,755 which was not the subject of the appeal.