Quantum in Discrimination Claims. By Carl Fender

Transcription

1 Quantum in Discrimination Claims By Carl Fender

2 Contents! Statutory test & application! Causation! Injury to Feelings! Factors affecting size of awards! Examples! Evidencing injury to feelings! Personal Injury

3 Statutory Test & Application! S.124(2)(b) EqA! Tortious loss measure! It seems to us quite clear that the correct measure of damage is based on the principle that, as best as money can do it, the Claimant must be put into the position she would have been in but for the unlawful conduct of the MoD in dismissing her by reason of her pregnancy MoD v Cannock [1994] IRLR 509 (EAT)! Not a just and equitable test (as in unfair dismissal) but one based on remoteness

4 Causation! Remoteness of loss is not based on reasonable foreseeability but whether there is a direct link between the discrimination and loss (barring any break in the chain)! If there is a personal injury element then medical evidence will have to show what was caused by the unlawful act and what was an underlying condition

5 Injury to Feelings! Vento v CC of West Yorks (No.2) [2003] IRLR 102! Three bands are (since Da Bell v NSPCC) 750-6,000 6,000-18,000 18,000-30,000! awards in other cases only assist in a general way (Vento para. 60)

6 Injury to Feelings The top band should normally be between 18,000 and 30,000. 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 30,000. The middle band of between 6,000 and 18,000 should be used for serious cases, which do not merit an award in the highest band. Awards of between 750 and 6,000 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 750 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings (Vento para. 65)

7 Factors Affecting Size of Awards! Number of incidents! Impact on complainant if there is no impact, no award should be made though rare! Type of conduct eg harassment or some other conduct such as dismissal or rejection of a grievance! Was the conduct overt or covert

8 Examples! Top band cases Miles v Gilbank [2006] ICR 1297 : female hairdresser announced her pregnancy at work there had been an inhumane and sustained campaign of bullying and discrimination against her by managers. The campaign was targeted, deliberate, repeated and consciously inflicted and not only demonstrated..a total lack of concern for the welfare of the claimant herself, but a callous disregard for the life of her unborn child. ( 25,000 awarded) Driscoll v MGN Ltd ET [2007] : the claimant was subjected to many acts of discrimination which which caused him a considerable amount of hurt and anguish; damaged his confidence and self-esteem; caused a depressive illness to someone without any previous history of depression. ( 25,000 awarded)

9 Examples! Middle Band Cases Grant v Northumberland County Council ET [2008] : claimant was bipolar and had substantial periods of time off work on three occasions. During the last absence, the council began a sickness procedure which was in effect a disciplinary process. This exacerbated her condition and delayed recovery by three years. The council failed to make any reasonable adjustments and this had delayed the return to work. The ET noted that..work, as well as being a potential stressor was also a source of comfort for her. Without it she had little enjoyment of life and was to some extent isolated. ( 17,500 award) Wade-Jones v CJ Upton & Sons Ltd ET [2009] : sexual harassment case. This was a case of overt conduct with comments about the claimant s legs (her chair was pulled out by a colleague to show them off) as well as suggestions of sexual liaisons with a client. When the claimant gave in her notice she was threatened with a disciplinary in an attempt to get her to drop a complaint of discrimination. The campaign was not sustained enough to attract an award in the highest band. ( 15,000 award)

10 Examples! Lower Band Cases Kellie v Izmaylova Ltd ET [2011] : claimant suffered from sickle cell anaemia. She had time off work frequently and was often hospitalised. She was offered and accepted a post. On her first day she advised the company of her condition in accordance with company rules. A few days later she went sick and that same day she was dismissed with a message that she should take care of her health before beginning a new job. The claimant was devastated but had only had a job for a short period. ( 5,000 awarded) Williams v Central Manchester University Hospitals NHS Trust ET [2010] : During a meeting to discuss the claimant s return to work a HR director said to W (who was Jewish) You wouldn t expect a Jew to take up a post with the Gestapo, would you, because after all, they wouldn t fit it wouldn t work. No apology offered at the time but a one-of remark. ( 4,500 awarded)

11 Evidencing Injury to Feelings! Evidence from the Claimant! Evidence from the Claimant s partner as to the impact on the Claimant s home-life! Evidence from former or present colleagues about impact on work-life! Evidence from the Claimant s GP corroborating the impact described by the Claimant if the symptoms fall within the time-frame of the discrimination

12 Personal Injury! Psychiatric injury only! Need to distinguish between injury to feelings and personal injury! Mere hurt and upset are injury to feelings! For personal injury there needs to be a diagnosis of a medical condition! JCB Guidelines and Kemp & Kemp comparators for assessment! Underlying conditions

13 Personal Injury! Avoiding double-recovery! Distinguishing between injury to feelings and personal injury : HM Prison Service v Salmon [2001] IRLR425 It appears that tribunals in such cases do sometimes treat stress and depression as part of the injury to be compensated for under injury to feelings ; and we can see nothing wrong in principle in a tribunal taking that course, provided that it clearly identifies the main elements in the victim s condition which the award is intended to reflect (including psychiatric injury) and the findings in relation to them. But where separate awards are made, tribunals must be alert to the risk that what is essentially the same suffering may be being compensated twice under different heads (Salmon para. 29)

14 Personal Injury! The same point was also made in Vento Common sense requires that regard should also be 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 (para. 68)

15 The End! Carl Fender Regency Barristers Chambers