Claims arising from Bullying and Harassment in the Workplace for Forces Law at Wace Morgan by Fergus Currie

FORCES LAW at WACE MORGAN SOLICITORS

Claims arising from Bullying and Harassment in the Workplace

This talk assumes that the bullying / harassment in question has already taken place, and so concentrates upon the cure rather than the prevention.

There are two primary causes of action for someone who wishes to make a claim –

(i) in the County Court / High Court for Personal Injury (with an associated claim under the Protection from Harassment Act – ‘PHA’); or

(ii) for Discrimination / Harassment under the Equality Act 2010 (‘EqA’) in the Employment Tribunal (as long as the individual has a Protected Characteristic).

There is also the possibility for Judicial Review of any decision by a public body (on the grounds of illegality, irrationality, or procedural impropriety. An award for damages can be made provided there is a power to do so on a private law basis) although time limits here are tight – 3 months from the date of the decision being taken – and all alternative remedies ought to have been exhausted.

1. Personal Injury in the County Court / High Court

This is a relatively new phenomenon (which started life in the mid-1990s, and has developed since, to a degree).

For the Defendant to be held liable in negligence, the Claimant will need to establish that the Defendant failed to take reasonable care for his safety (including the provision of a safe place / system of work). The duty extends to protecting him from suffering stress at work sufficient to cause psychiatric illness (Walker –v- Northumberland CC ¹⁹⁹⁵ 1 All ER 737 and Sutherland –v- Hatton ²⁰⁰² PIQR 241, CA). That duty is non-delegable (it cannot be passed to others, such as sub-contractors, etc.)

As set out in Sutherland –v- Hatton, the threshold question is whether the kind of harm caused to this particular Claimant was reasonably foreseeable. Reasonable foreseeability has two components: (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).

Foreseeability depends on what the Defendant knew, or reasonably ought to have known, about the Claimant. Knowledge is therefore all important.

While constructive knowledge will suffice, there is no real substitute for actual knowledge. Therefore, the individual needs to ensure that his / her superiors are aware, both of the conduct that is alleged to breach the duty of care, and that this conduct is having an effect on his / her mental health.

Constructive knowledge (what the Defendant ought reasonably to have known) can be proved by using either the Claimant’s own levels of sickness or absenteeism, or the overall levels of others carrying out the same role.

In Sutherland –v- Hatton, Hale L.J. suggested that “unless [the employer] knows of some particular problem or vulnerability, the employer is entitled to assume that his employee is up to the normal pressures of the job” (although in Barber it was stressed that the onus remained on the Defendant employer to give positive thought to employee welfare). The same principles apply to the MOD, even though there is no contract of employment with Service personnel (although Civilian personnel will properly be seen as ‘employees’). The test is the same whatever the occupation: no occupations ought to be regarded as intrinsically more dangerous to mental health than others.

In the absence of knowledge of a particular vulnerability, there may still be liability if the Claimant is exposed to a traumatic event at work and the Defendant fails to provide adequate counselling – Melville –v- The Home Office ²⁰⁰⁵ EWCA Civ 6. (While this is clearly potentially relevant to claims by members of the Armed Forces, in a bullying / harassment case it is equally clear that the Defendant’s duty will go well beyond this, provided they know of the conduct concerned).

JSP 763 – The MOD Bullying and Harassment Complaints Procedures

Service complaints and civilian grievance procedures are the framework for dealing with complaints from MOD Service or civilian personnel relating to their service or employment.

For Service personnel, JSP 831 sets out MOD policy concerning Service complaints seeking redress of individual grievance under sections 334 to 339 of the Armed Forces Act 2006. The procedures for civilian personnel are set out in the MOD Civilian Grievance Policy. If the complaint is related to bullying or harassment, Armed Forces and civilian personnel are to use JSP 763. Complaints of bullying and harassment where the Respondent is a MOD Police Officer will be handled in accordance with the MDP harassment complaint procedures.

Formal complaints should be raised within 3 months of the act (or last act) complained about. A complaint outside this period can be considered if “just and equitable” to do so (mirroring the rules of the ET).

Once informal resolution has failed, or is inappropriate in the first place, the Service complaints process (service personnel only) has 3 levels:

Level 1 – the DO, usually the CO (roles and responsibilities of the CO are detailed in JSP 831 Chapter 3);
Level 2 – the Superior Officer (SO) (roles and responsibilities at JSP 831 Chapter 4); and
Level 3 – the Defence Council level (roles and responsibilities at JSP 831 Chapter 5).

COs should consider carefully whether they can effectively deal with the complaint in reasonable time. Should the CO not be able to do so or lack the authority to grant the desired or any other appropriate redress, they may refer the complaint to the SO after conducting an appropriate investigation (the investigation MUST take place at Level 1).

If the SO also does not have the authority to grant the appropriate redress, the CO may refer the complaint directly to the Defence Council, having consulted with the SO. On receiving a complaint, the SO should make the same considerations as the CO.

At each of the first two levels, if the Complainant is not satisfied with the proposed resolution of the complaint or the redress to be granted they may apply to have the complaint referred to a higher level for consideration.

Along with other specific timeline for the separate stages of the process, the timeline for resolution of Service complaints is 24 calendar weeks (para 5.17).

The Guidance for Harassment Investigation Officers (HIO) and Decision Officers (DO) covers some of the typical euphemisms that may be used by witnesses in order to describe the parties involved.

Applied to the Respondent, comments might include:

(1) has a “forceful”, “strong” or “robust” character;
(2) has an “unfortunate manner”;
(3) does “not suffer fools gladly”;
(4) is not a “people person”;
(5) “it’s just his/her way”;
(6) a “hard taskmaster”; or
(7) one of the “old school”.Applied to the Complainant, comments might include:

(1) “over sensitive”;
(2) “can’t take a joke”;
(3) a “natural victim”;
(4) a “(bit of a) loner”;
(5) “not a team player”; or
(6) has an “attitude problem”.

This is ‘painting by numbers’, but it definitely constitutes progress.

The JSP says the following about sanctions:

Under Service procedures, administrative action, ranging from warnings to administrative discharge, may be taken in respect of in-Service misconduct (including bullying and harassment). Disciplinary action may be taken in respect of offences under the AFA 06. Although unusual, there may be occasions where an individual is subject to both disciplinary action and administrative action arising out of the same set of circumstances. In such cases, the disciplinary action deals with the criminal behaviour, whereas the administrative action concerns the individual’s continued employability. The two forms of action are not mutually exclusive.

Under civilian misconduct procedures, minor misconduct action in the form of a first warning may be taken in respect of minor misconduct (including less serious cases of harassment), while serious or gross misconduct action, involving penalties up to dismissal, may be taken. Where it appears that a civilian has committed a criminal offence, the matter must be referred to the MOD Police.

A Respondent cannot be ordered to apologise to a complainant, but if they are invited to do so and refuse, this may be taken into account in deciding on subsequent administrative / disciplinary action against them. The JSP recognises that any expectation of some form of public apology is unrealistic.

As much detail as possible needs to be put within the pleading of such claims. There is some dispute as to whether it is necessary to plead and prove an alternative system of work which could have been adopted and would have been safe.

This is of particular importance in bullying / harassment cases based on excessive workloads, etc. CPR 16.5 requires a Defendant to set out its alternative version of events / reasons why an alternative system would be impracticable, when denying an allegation.

If in doubt, plead any alternative, safe, systems of work. In the most extreme examples of bullying / harassment this will not be necessary – as the alternative will simply be for the perpetrator to desist – but it is worth bearing in mind in other cases.

For an action under the PHA, although the intention of the perpetrator is irrelevant, the following conduct needs to be proved (either to establish a criminal offence or a tortious action):

• Occurring on at least two occasions;
• Targeted at the complainant;
• Calculated in an objective sense to cause alarm or distress;
• Objectively judged to be oppressive and unreasonable.

An action in negligence (breach of the duty of care owed to Service personnel) can also be joined by an allegation of breach of contract – where there is no express contractual provision, a breach of the implied term of trust and confidence in the Service contract can be argued. Doubt is expressed in JSP 763 as to the status of such a cause of action, but there is no reason why this cannot be pleaded in cases involving Service personnel.

Bullying has no legal definition. JSP 763, Annex A, para 21, specifically refers to initiation ceremonies in this context. It gives the (somewhat conflicting) advice: “Initiation ceremonies should be strongly discouraged. Such activities are now prohibited…”

2. Discrimination / Harassment in the Employment Tribunal

Any action in the ET is dependent on the Claimant having a Protected Characteristic (s. 4 EqA – age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation).

No ET action can be commenced without the Claimant utilising the internal complaints procedure. The requirement is to raise the complaint internally and not withdraw. It does not matter therefore that the internal process is ongoing. (It is treated as withdrawn if it has not been referred to Level 3 and the complainant has not applied for such a referral).

The limitation period is extended to six months from the (last) date of the conduct, in order to allow the internal process to be used.

The MOD is vicariously liable for the actions / failures of staff and workers under its control. However, by virtue of s. 110 EqA, an action can also be pursued against an employee / agent of the employer / principal. Thus, where the MOD are able to rely on the s. 109 EqA defence that they took all reasonable steps to prevent any discrimination, the individual discriminator will remain liable for the conduct itself. It is thus often worthwhile adding in an additional Respondent(s) in the ET claim.

(In sufficiently serious cases, there is the possibility of a claim for constructive unfair dismissal on the resignation of a complainant, based on a repudiatory breach of contract by the MOD).

(i) Discrimination

s. 13 (direct discrimination); s. 16 (gender reassignment discrimination – absence from work); s. 18 (pregnancy and maternity discrimination); and s. 19 (indirect discrimination). Age and disability discrimination provisions do not apply (except for MOD Civilian employees where s. 15 – discrimination arising from disability, and s. 20 – duty to make reasonable adjustments, do apply).

s. 13 EqA – less favourable treatment. Comparator (actual and / or hypothetical) needed, whose circumstances are “not materially different” (s. 23). Causation because of protected characteristic is required, but there is no requirement to show motive or intent. The characteristic need not be the sole or even the main cause of the less favourable treatment – a “more than trivial” influence suffices (Nagarajan –v- London Regional Transport ²⁰⁰⁰ 1 AC 50).

Associative discrimination is prohibited (although it is likely this will mostly be relevant to disability cases, and therefore primarily of application to civilian employees). For the restrictions of this, see:

Hainsworth (Appellant) –v- MOD (Respondent) & Equality & Human Rights Commission (Intervener) ²⁰¹⁴ EWCA Civ 763

The employer’s obligation under Directive 2000/78 art.5 to provide reasonable accommodation in relation to persons with disabilities applied only in the case of a disabled employee and not where the disabled person was only associated with an employee.

The Claimant worked for the MOD in Germany. She was a civilian teacher attached to the armed forces. The requirement for her to work in Germany was a provision, criterion or practice (PCP) within the EqA. The Claimant had a daughter who lived with her and was disabled. The MOD offered mainstream education and training for the children of its employees working in Germany, but did not offer special education for children. The Claimant requested a transfer to work at an MOD establishment in the UK where special schooling would be available. Her request was refused. She claimed that allowing her transfer application would be a reasonable adjustment to the PCP under s.20. However, the effect of s.20 was restricted to employees and applicants for employment. The Claimant therefore based her claim on the duty under Directive 2000/78 art.5 on the basis that a purposive interpretation of that provision would extend to providing reasonable accommodation to a disabled person who was associated with an employee.

HELD at the CA: Having regard to the language of art.5 and to recitals to the Directive it was clear that the entire focus was the provision made by the employer for employees and trainees. The general aims of positive action and equal employment opportunities could not be read into art.5 so as to extend it to associates of employees. Furthermore, if the Claimant’s interpretation was right, the provision would be hopelessly uncertain because the relationship of “association” with an employee was vague and open-ended and might not stop with an employee’s family. (The ‘floodgates argument was a relevant consideration)

The decision in Coleman –v- Attridge Law (A Firm) (C-303/06) EU:C:2008:415 that “transferred” or “associative” discrimination was covered by the Directive in a case of direct disability discrimination and disability related harassment was a decision on art.1 of the Directive, and not the provisions of art.5.

In Coleman, the Claimant was employed as a legal secretary. She gave birth to a disabled son. She was his primary carer. After taking voluntary redundancy she lodged a claim for unfair constructive dismissal, alleging that she had been treated less favourably than other employees because she was the primary carer of a disabled child. This was said to be direct discrimination, contrary to art.1.

The decision in Coleman could not be read across to Hainsworth. In the latter, the Claimant had to assert a duty to act for the benefit of her daughter. The proximity between her and her daughter was crucial, but art.5 gave no clue as to what degree of proximity was necessary. It followed that the EAT was right that her ground of appeal was doomed to fail. It was not necessary to make a reference to the ECJ because the interpretation of art.5 was acte clair (clear enough, according to EU legal principles).

Positive discrimination is generally unlawful too (with limited exceptions) – s. 158 and 159 EqA. More favourable treatment because of a protected characteristic is prohibited (this will constitute direct discrimination against others not so treated), expect insofar as (i) a person’s disability has resulted in them being treated more favourably by being given equal access or (ii) a pregnant woman or new mother has positive action attributed to her.

s. 18 EqA – as s. 13 does not apply in cases of pregnancy and maternity discrimination (a male comparator could never find himself in a similar situation), we have s. 18 (unfavourable, as opposed to less favourable, treatment).

(ii) Harassment and Victimisation

s. 26 (harassment) and s. 27 (victimisation).

Harassment is unwanted conduct that has the purpose or effect of violating dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment. Again, it must be based on a protected characteristic (although marriage / civil partnership and pregnancy / maternity are not covered, these are still amenable to a s. 13 claim).

Where the conduct is unintentional, the test is whether in all the circumstances, including the perception of the employee, the conduct could reasonably be considered as having either of the specified effects.

This need not be a course of conduct: a one-off incident would be sufficient to fall within the definition if it is sufficiently serious (Richmond Pharmacology –v- Dhaliwal ²⁰⁰⁹ IRLR 336). The conduct does not have to be targeted at anyone in particular: it can consist of a general culture or atmosphere.

A couple of interesting examples here:

English –v- Thomas Sanderson Blinds Ltd ²⁰⁰⁸ EWCA Civ 1421 – the employee here had been harassed on the grounds of sexual orientation (in respect of which there is no statutory definition), where he was subjected to innuendo that he was gay, even though he was – and was known to be – heterosexual.

Saini –v- All Saints Haque Centre ²⁰⁰⁹ IRLR 74, EAT – an employee who is harassed because of a third party’s protected characteristic – the Claimant refused to assist his employer in justifying his colleague’s discriminatory dismissal on religious grounds – was himself unlawfully harassed.

Sexual harassment (a separate and distinct category) adds the requirement that the unwanted conduct be “of a sexual nature”. No protected characteristic is required. It need not be on account of the complainant’s gender or take place between members of the opposite sex.

• When does ‘banter’ become harassment? (A question that courts and tribunals often end up asking themselves)
  This is an increasingly hateful expression, used to hide a variety of sins. From a Defendant / Respondent perspective, it is strongly advised that this word not be used in pleadings or statements, etc.
  However, it is a relevant consideration as far the individual circumstances of a case are concerned (in looking at whether there genuinely was a situation amounting to harassment).

s. 26(3) EqA adds less favourable treatment because of a person’s reaction to harassment – when someone has experienced sexual harassment, or harassment relating to sex or gender reassignment, and is treated less favourably because of having rejected the conduct or having submitted to it, that will be harassment itself.

s. 40 EqA provides that the Respondent will also be liable for harassment if it fails to take reasonably practicable steps to prevent third parties from repeatedly harassing an individual (where there have been two or more incidents and the Respondent is aware of this).

Victimisation – this is an entirely separate cause of action which is always worth considering, perhaps even after legal representatives have become involved in a bullying / harassment claim – where a complainant is subjected to a detriment because he or she has either done a protected act, or the perpetrator believes that he or she has done, or may do, a “protected act”. A protected act is – s. 27(2):

(a) bringing proceedings under the EqA;
(b) giving evidence or information in connection with proceedings under the EqA;
© doing any other thing for the purposes of or in connection with the EqA;
(d) making an allegation (whether or not express) that the EqA has been contravened.

It will not be protected if false and made in bad faith. There is no need to show that the victimiser was consciously motivated by the protected act.

Burden of proof (an important provision in ET cases) – s.136 EqA (in all cases alleging discrimination of one form or another). Once the Claimant has shown facts from which the ET could conclude that there has been an act of unlawful discrimination, the burden shifts to the Respondent to show there was no discrimination (given how unusual it is to find direct evidence of discrimination). If it fails, the complaint must be upheld.

For an example, see:

MOD –V- MacMillan (2004)

In order for disparate treatment to be established in the form of indirect discrimination between men and women in the context of the Sex Discrimination Act 1975, the evidence had to support it and lead directly to the necessary inference, but here the employee’s failure to lead any evidence that other women in full time employment in the Navy were suffering the same or equivalent detriments that she claimed, left her in a category of one and did not permit an inference of discrimination to be drawn.

The MOD appealed against a decision that it subjected the Claimant to indirect sex discrimination. The Royal Navy operated a policy which required all serving personnel to work on a full time basis. The Claimant had complained that she was not allowed to work part time, which would have allowed her more time to care for her family.

The ET decided that, by requiring the Claimant to work normal hours, the MOD had applied to her a PCP which it applied equally to men, but which was to the detriment of a considerably larger proportion of women, and was not objectively justified.

The MOD contended that in order to determine whether there was less favourable treatment and detriment affecting a considerably larger proportion of women than men, there had to be a pool for comparison, and that pool should be the Royal Navy’s whole workforce. And as there was no evidence that any other personnel, male or female (other than the Claimant) had suffered from having to work full time, then there could be no evidence of less favourable treatment.

HELD: A pool was not necessary in essential terms to establish disparate treatment although, in many cases, it might be the only way of so doing. However, in order for disparate treatment to be established in the form of indirect discrimination between men and women, the evidence had to support it and lead directly to the necessary inference.

The Claimant’s failure to lead any evidence that other women in full time employment in the Navy were suffering the same or equivalent detriments that she claimed, left her in a category of one and did not permit an inference of discrimination to be drawn. Moreover, when determining the issue of detriment, it had not been appropriate for the ET to make a blanket declaration that working mothers were disparately affected compared with men per se.

MOD appeal allowed.

Armed Forces Occupational exception (Sch 9 Part 1 EqA)

“4(1) A person does not contravene section 39(1)(a) or © or (2)(b) by applying in relation to service in the armed forces a relevant requirement if the person shows that the application is a proportionate means of ensuring the combat effectiveness of the armed forces.
(2) A relevant requirement is—
(a) a requirement to be a man;
(b) a requirement not to be a transsexual person.
(3) This Part of this Act, so far as relating to age or disability, does not apply to service in the armed forces; and section 55, so far as relating to disability, does not apply to work experience in the armed forces.”

So, this allows the MOD to exclude women and transsexuals from service if it is proportionate to ensure combat effectiveness. The armed forces are also exempt from the work provisions relating to disability and age.

The Government has said the exclusion is “because Armed Forces personnel need to be combat effective in order to meet a world-wide liability to deploy, and to ensure that military health and fitness remain matters for MOD Ministers based on military advice, not for the courts.” An amendment challenging the exclusion was resisted by the Government in the House of Commons Committee on the Equality Bill and also in the House of Lords Committee. In 2009 the UK government maintained its position by entering a reservation on service in the armed forces in its ratification of the UN Disability Convention.

Duplication of Claims

Care should be taken to choose the most appropriate way of pursuing any claim – it is long established that courts will prevent a Claimant from claiming for the same loss twice. Such actions will be deemed res judicata (‘a matter judged’). In fact, it goes a bit further than that: any claim that could have been litigated in one tribunal should not be allowed to be litigated in another.

See Sheriff v Klyne Tugs Ltd ¹⁹⁹⁹ ICR 1170 – the Claimant’s claim for an injury to feelings award for race discrimination was brought in the ET and compromised by way of a settlement agreement. When he subsequently tried to pursue a County Court action for personal injury damages he was found to have compromised that claim via the settlement agreement.

(This was also the first case where the CA considered whether the ET had inherent jurisdiction to consider a claim for physical and mental damage as a consequence of an employer’s discrimination. The answer was very much in the affirmative. That gives Claimants the power to choose. However, for some, that might be too much choice).

Advantages and Disadvantages of ET / County Court?

(A) Factors for using the ET:

(1) Speed (3 months for bringing ET1 and 28 days for ET3). (This could be seen as a disadvantage if the referral from the client happens more than 3 / 6 months after the event!)

(2) Generally, a no costs regime.

(3) At common law, there is a need to prove either intention or lack of care (instead a need to prove that the conduct was ‘on the grounds of’ a protected characteristic).

(4) ‘Essa type’ claims (see below) focus on causation of injury.

(5) Vicarious liability will typically be easier to establish at an ET than it is in the civil courts (Majrowski v Guy’s & St Thomas’ NHS Trust ²⁰⁰⁶ UKHL 34 – the principle of vicarious liability is not confined to common law torts, but was also applicable to equitable wrongs and breaches of statutory obligations (as long as the breach is committed “in the course of his employment”).

The reality here is that it will be easier for Claimant to pursue PI claims resulting from even extreme acts of fellow employees in the ET than in the County Court. In Jones –v- Tower Boot ¹⁹⁹⁷ 2 All ER 406, the CA ruled that racist acts carried out by employees may be seen as done “in the course of employment” – and will thus engage the liability of the employer – even though the behaviour has nothing directly to do with the work the employee is employed to do. This phrase was to be answered by reference to the ordinary meaning of those words, rather than to the more stringent requirements of the common law concept of vicarious liability.

(6) The possibility of claiming a sum in respect of injury to feelings.

(7) There is no requirement for front-loading cost and expense in an ET as there is in a civil claim, where protocols have to be observed, medical evidence served, and usual requirement for a schedule of damage. The process of litigation is therefore much less prescriptive.

(B) Factors for not using the ET:

(1) The no costs rule.

(2) Arguably ET judges are arguably not as intuitive or experienced as County Court judges.

(3) Time limits.

Injury to feelings

In the ET, an injury to feelings award is recoverable. This is compensatory only; it is not to be seen or used as a punishment or deterrent. No formal psychiatric evidence is required (although it undoubtedly helps, and it has been recommended that judges consider the Judicial College Guidelines). The actual loss suffered, the nature of the harassment and the period over which the harassment took place will all be relevant factors.

Guidance as to the value of such awards was originally given in Vento –v- CC of West Yorks Police (No 2) ²⁰⁰² EWCA Civ 1871; as updated by Da’Bell –v- NSPCC ²⁰¹⁰ IRLR 19, and now further updated – from 11 September 2017 – by Presidential Guidance; as follows (to be reviewed annually):

• Lower band (less serious cases, £800 to £8,400
perhaps isolated or one-off occurrences)

• Middle band £8,400 to £25,200

• Upper band (most serious cases, £25,200 to £42,000
perhaps lengthy campaign of harassment on
race / sex grounds)

• Exceptional cases over £42,000

In Essa –v- Laing Ltd ²⁰⁰⁴ IRLR 313 (a case arising out of discrimination at Cardiff’s Millenium Stadium, where the subcontractor who had employed Mr. Essa was the wonderfully named Roy Rogers) the CA ruled that – in cases of direct discrimination – it was not necessary to show reasonably foreseeable psychiatric harm or loss; the Claimant will be compensated for the loss and damage which flows naturally and directly from the wrongful act. The Claimant needs to show the causal link.

The CA said that in order to be entitled to compensation for unlawful racial discrimination, it is not necessary for the Claimant to show that the particular type of loss was reasonably foreseeable. Justice and equity are best served by holding that it is sufficient if the Claimant shows that the particular type of injury alleged was caused by the act of discrimination. There was no real risk that, without a further requirement of reasonable foreseeability, the floodgates of unmeritorious claims would be opened. It was possible that different considerations will apply where the discrimination takes other forms.

Given subsequent disapproval / restricted application of Essa, it is arguable that it should be regarded as applying only to cases where there have been deliberate acts of discrimination such as direct discrimination, harassment and victimisation. Where the failures are much more akin to negligence or nuisance then it is likely that the employer will have strong argument for contending that loss has to have been foreseeable.

By way of a recent example of the ET’s approach to claims with a PI element, see Hampshire County Council –v- CM Wyatt (2016) UKEAT/0013/16/DA – where a psychiatric injury had more than one cause, a Tribunal could award compensation for that part of the harm for which the Respondent was responsible, provided that the harm was truly divisible. Medical evidence (which was advised should be obtained in Sheriff –v- Klyne Tugs) was likely to assist in identifying whether all the injury or harm suffered by a Claimant was attributable to the unlawful conduct and whether that injury was divisible. It could also assist with the question of prognosis.

However, that did not mean that medical evidence was an absolute requirement, or that no award could be made in the absence of expert medical evidence (there are many examples of awards for injury to feelings where what has been caused is “anger”, “distress”, “frustration” and “affront”; the EAT has affirmed on a number of occasions that medical notes and a GP’s report will often suffice).

The ET was entitled to characterise the employee’s injury as “moderately severe” with a bracket of £15,000 to £44,000 under the JC Guidelines. There was no error of law or principle in awarding £10,000 for personal injury and £15,000 for injury to feelings, producing a total general damages award of £25,000. It fell squarely within the appropriate bracket. An award of £10,000 on its own would have been on the low side, but the Tribunal also made an award for injury to feelings and was conscious of the potential for overlap and double recovery.

For a further example relevant to the Armed Forces, see:

MOD –v- Kemeh ²⁰¹³ Eq. LR 605

An award of £12,000 for injury to feelings caused by a racist remark made to an army chef by his superior officer was reduced to £6,000.

The MOD appealed against a decision that an individual, who had made a racist remark about the Claimant, was the MOD’s agent and appealed against the amount of compensation awarded.

The Claimant was a black African employed as a chef by the MOD. Part of the catering was contracted out by the MOD to a contractor which employed a butcher (B). In two separate incidents, B and a senior non-commissioned officer (S) spoke to the Claimant in a way which his commanding officer later found amounted to bullying and / or racial harassment. The ET found that B was the MOD’s agent for the purposes of the Race Relations Act 1976 and so it was responsible for her racial remark. For injury to feelings, the MOD was ordered to pay £3,500 in relation to B’s remark and £12,000 for S’s remark. The EAT considered (i) the agency point; (ii) the amount awarded for S’s remark.

HELD: (1) It was common ground that the common law principles of agency applied to the construction of the RRA. In those circumstances, the ET had applied the wrong legal test when directing itself that common law principles concerning agency were not necessarily applicable. However, the necessary causative link could not be made out on the evidence before, and the facts found by, the ET.

There was no warrant for the ET’s reasoning that the nature of the contract for the provision of services by the contractor to the MOD, or the fact that civilian employees of the sub-contractor were subject to day-to-day control by the military, gave rise to any relationship of agency at common law between the MOD and the sub-contractor and its employees. In those circumstances, the appeal on the agency point was allowed and the award made in respect of B’s remark set aside.

(2) A distinction had to be drawn between the case of S, the superior officer, and that of B, an employee of a civilian contractor. However, placing S’s remark in the middle band set out in Vento was wrong in principle and manifestly excessive. Such an award would be appropriate for a course of discriminatory conduct. In the instant case, the proper award, at the top of the lower band, was £6,000. It was therefore appropriate to substitute an award of £6,000 for that of £12,000 in relation to S’s remark.

MOD appeal allowed.

CA subsequently dismissed the Claimant’s appeal on both grounds.

Aggravated and Exemplary damages

These are more unusual.

Aggravated damages are available where there is malice or bad faith on the part of the employer, or where the employer has treated the perpetrator of discrimination leniently or favourably, or where the employer has defended proceedings in an inappropriate or intimidatory way (aggravated damages can be claimed in these circumstances as an alternative to pursuing a costs order; and may also give rise to a claim for unlawful victimisation).

Exemplary damages are reserved for the most serious cases of abuse of governmental power (“oppressive, arbitrary or unconstitutional action by servants of the government”).

For a relevant example:

MOD –v- Fletcher ²⁰¹⁰ IRLR 25

The EAT held that the ET had erred in its approach to the award of aggravated and exemplary damages to an army recruit who had been subject to victimisation and sex discrimination.

The MOD appealed against an award made by the ET in favour of F after upholding her claims of direct discrimination and harassment under the Sex Discrimination Act 1975 and of victimisation contrary to the Employment Equality (Sexual Orientation) Regulations 2003.

The ET had found that the Claimant had been sexually harassed by an officer, that another officer had told staff to make her life a misery, that disciplinary procedures and sanctions had been used to victimise her, that she had been reduced to a state where she could not continue in her post, that there had been a systemic failure of mechanisms for redress, and that the MOD had acted unreasonably in its conduct of the Tribunal proceedings. In that respect, the ET stated that the Claimant had been subjected to a particularly unpleasant cross-examination delving into her intimate psychiatric history and the early origin of her sexual orientation. It also criticised the MOD for calling evidence relating to the allegations of sexual harassment, given that the allegations had been accepted at an internal hearing.

The ET awarded £30,000 for injury to feelings, aggravated damages of £20,000 and exemplary damages of £50,000. It based its award of aggravated damages on three matters: the MoD’s oppressive use of disciplinary procedures, its failure properly to investigate and provide redress for her complaints of discrimination, and its conduct of the ET proceedings.

The award of exemplary damages was based on its failure to provide a proper mechanism for redress in respect of the Claimant’s complaints.

The MOD argued that (1) the ET had been wrong to use its conduct of the proceedings as a basis for awarding aggravated damages; (2) there was a significant overlap between the basis of the award for injury to feelings and that for aggravated damages; (3) the facts found by the ET could not support an award of exemplary damages.

HELD: (1) The ET had not erred in considering the conduct of proceedings in the two respects identified to be of sufficient gravity to warrant an award of aggravated damages, Zaiwalla & Co –v- Walia ²⁰⁰² IRLR 697 applied.

(2) The ET had relied on its conclusions that disciplinary sanctions were part of a campaign of victimisation and that redress procedures had been carried out in an inappropriate way as grounds for awarding compensation for injury to feelings. Given that those factors were also taken into account in awarding aggravated damages, there was an overlap in the awards. In that respect, the ET had erred. However, it had not erred in basing part of its award of aggravated damages on the extremely reprehensible conduct in the form of the MOD’s misuse of disciplinary procedures and the way in which her applications for redress were handled. In the circumstances, the award of aggravated damages would be reduced to £8,000.

(3) The authorities established that exemplary damages were to be reserved for the most serious abuses of governmental power. Although the ET characterised the MOD’s failure to provide or operate procedures for the redress of the Claimant’s complaints as “oppressive, arbitrary and unconstitutional”, its conduct in that regard, deplorable though it was found to be, did not cross the high threshold warranting an award of exemplary damages, Kuddus –v- Chief Constable of Leicestershire ²⁰⁰² 2 AC 122 applied. Accordingly, the ET had erred in making such an award. However, that conclusion might have been different had the ET based its award on the use of disciplinary procedures and sanctions to victimise F for pursuing complaints and to deter her from seeking redress.

In any event, the award of £50,000 was unsustainable. The rationale for awarding that sum was that to have any effect on the MOD the amount should match the aggregate amount of the sums awarded for injury to feelings and aggravated damages. There was no authority for such an approach. Determining the amount of exemplary damages in that way was likely to lead to double counting.

Moreover, exemplary damages would be justified only if the compensatory and aggravated damages were insufficient to mark disapproval of the perpetrator’s conduct and to provide a proportionate punitive element.

MOD appeal allowed.

Pecuniary losses

There are no major differences in the respective approaches of the ET / County Court in calculating financial loss: the ET should normally calculate damages for future loss of earnings by using the usual multiplicand and multiplier method adopted by the courts (Ministry of Defence –v- Cannock ¹⁹⁹⁴ IRLR 509).

In the past, the EAT discouraged the use of multipliers based on the Ogden tables for assessing future loss of earnings in discrimination cases, except when calculating pension loss. The Ogden tables should really only be used when the Claimant has established a prima facie case that loss will last for the rest of his or her career: see Kingston upon Hull City Council –v- Dunnachie ²⁰⁰³ IRLR 843. The use of the Ogden tables for pension loss (and more widely) has been re-affirmed in the most recent guidance on pension assessment in the ET (August 2017).

‘Chagger’ damages (relating to the stigma of bringing legal action / being ‘tarred with the troublemaker brush’)

Balbinder Singh Chagger –v- Abbey National plc and Anor ²⁰⁰⁹ EWCA Civ 1202

An employer could be liable for the losses resulting from the fact that a dismissed employee was unlawfully stigmatised by future employers who were unwilling to employ him because he had taken legal action against the employer. The mere fact that third party employers were the immediate cause of the “stigma loss” resulting from their refusal to employ the dismissed employee did not free the original employer from liability.

The employer had dismissed the Claimant, who was of Indian origin, on the ground of redundancy, without following the statutory dismissal procedures. The Claimant successfully claimed that he had been unfairly dismissed, that he had been discriminated against on the ground of his race and that B had breached the employment contract. He was awarded compensation amounting to some £2.8 million. The figure was arrived at on the basis that he would never again be able to obtain employment in his chosen field. It included compensation for refusal to comply with an order for reinstatement following the unfair dismissal finding, and compensation for injured feelings.

The issues on appeal included whether (i) compensation should have been reduced to reflect the chance that the Claimant would have been dismissed for redundancy in any event; (ii) future compensation should have been limited to the period during which the Claimant would have remained in employment; (iii) the employer should be liable for the so called “stigma” consequences of the dismissal (the decision by third parties not to employ the Claimant because he had taken proceedings against his employer).

HELD: (1) An employee had to be compensated for the full loss flowing from an unlawful act (Essa –v- Laing followed). The fact that race was a significant factor in a dismissal decision was sufficient to establish liability for that loss, but that fact did not assist in determining the measure of the loss. Here, there was plainly a realistic prospect that the Claimant would have been dismissed even if the selection for redundancy had been on a non-discriminatory basis, and the ET had to assess that prospect.

(2) The EAT had erred in law in concluding that future loss was limited to the period during which the Claimant would have remained with the employer had he not been the subject of unlawful discrimination. That approach failed to have regard to the extent to which the discriminatory dismissal affected career prospects.

(3) Stigma loss was, in principle, recoverable. The mere fact that third party employers were the immediate cause of the loss resulting from their refusal to employ, did not free the original employer from liability, Malik –v- Bank of Credit and Commerce International SA (In Liquidation) ¹⁹⁹⁸ AC 20 followed. The burden of showing that loss flowed from stigma was on the employer in a case where there was plainly continuing future loss. Accordingly, the EAT had erred in finding that the employer could not be liable for the losses resulting from the fact that the Claimant was unlawfully stigmatised by future employers who were unwilling to employ him because he had taken legal action. On the facts, the ET adopted the correct approach to the evidence of stigma, by treating it as a part of the evidence relating to the Claimant’s attempts to mitigate his loss.

Recommendations

On top of any financial award, the ET can also make a recommendation that the MOD or the discriminator / harasser obviate or reduce the effect of the harassment (e.g. to be posted away from the Complainant, to undergo appropriate training, or to apologise). Failure to comply without reasonable justification can lead to an increase in compensation.

Other items of interest:

• ACAS have just published a new guidance booklet on Promoting Positive Mental Health in the Workplace, including two smaller online guides: Dealing with Stress in the Workplace and Managing Staff Experiencing Mental Ill Health – http://www.acas.org.uk/media/pdf/o/7/Promoting-positive-mental-health-in-the-workplace.pdf

This recognises the particular stigma that attaches to mental health. Let’s hope that this raising of awareness in general leads to a more sympathetic approach by the courts / tribunals in deciding on all the issues discussed above.

Fergus Currie, Unity Street Chambers, Bristol
13th October 2017