Employment Flash - 23rd April 2010

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The Claimant was entitled to recover for injury to feelings and personal injury attributable to dismissal, without having to attribute the injury specifically to knowledge of discrimination...

Taylor v XLN Telecom LTD [2010] UKEAT 0385 09 ZT

C was unfairly dismissed in part because he had made a complaint of race discrimination and was victimised. Although he included claims for injury to feelings, injury to health (depression) and "aggravated damages" no award was made by the ET under those heads. ET declined to make an award for injury to feelings as C had failed to provide any evidence that his feelings were injured etc because of knowledge that his dismissal amounted to an act of unlawful victimisation. The ET relied on Coleman v Skyrail Oceanic Ltd [1981] IRLR 398, CA.

The ET were wrong in principle. Principles of compensation under ss.56(1)(b) and 57 RRA are the same as those for tort (Essa v Laing Ltd [2004] ICR 746). EAT unaware of authority that tort claims which require a "mental element", usually said to be "malice", require that C should know that the act complained of was tortious or that the required mental element was present; compensation is for the wrongful act.

Skyrail was dealing with injury to feelings, no claim was made for injury to health. Injury to health and injury to feelings are conceptually distinct. There may be a degree of overlap in relation to the suffering. C's injury to health should be dealt with in a conventional 'personal injury' way: unrelated to what he did or did not know of XLN's motivation. Appeal allowed.

In relation to injury to feelings Skyrail has been misunderstood. The key sentence in Skyrail was "any injury to feelings must result from the knowledge that it was an act of sex discrimination that brought about a dismissal." (Lawton LJ. Sir David Cairns agreed and added nothing. Shaw LJ dissented on liability but added nothing in relation to this point about awards).

First: it would be surprising if different rules applied to recovery for injury to feelings and injury to health where they commonly overlap. Second: can see no reason for making an exception in the case of awards for injury to feelings; distress and humiliation may be caused by conduct which is not overtly discriminatory; no doubt, generally, the distress and humiliation will be greater where the discrimination is overt or the victim understands the motivation to be discriminatory, but that does not justify there being no compensation where it is not. Third: an ET may be involved in having to make fine distinctions and unsatisfactory inquiries about knowledge and may have where appropriate to attribute a degree of distress between a proscribed characteristic and a characteristic which is not proscribed, making an award for the former but not the latter. Fourthly: in Skyrail the issue relating to the IT's decision was not that it had taken into account distress caused by the dismissal at a time when C had no reason to suppose it was discriminatory [this she only discovered from S's response to her claim] but that it had taken into account distress which C felt at the credence she believed had been given to the belief that she had been responsible for earlier leaks of confidential information. On that reading Lawton LJ is allowing compensation attributable to discrimination and that it could not be made for anything else.

The observation by May LJ in Alexander v Home Office [1988] ICR 685 where he reiterates the Skyrail point as understood by the present ET was an obiter dictum and there was no discussion on the point which was not an issue on the facts. Appeal allowed in relation to injury to feelings. All matters, including aggravated damages remitted to the ET.