Case round-up

This
week’s case roundups

Award
for injury to feelings reduced
The chief constable of West Yorkshire Police v Vento, Court of Appeal,
20 December 2002 All ER (D) 363

Vento,
a probationary constable, was dismissed for dishonesty and poor performance in
December 1997. She brought successful unfair dismissal and sex discrimination
claims and was awarded £165,829 for loss of future earnings, calculated on the
basis there was a 75 per cent chance of her staying in the police force until
retirement. She was also awarded £50,000 for injury to feelings, £15,000
aggravated damages and £9,000 for psychiatric damage. With interest, the total
award was £257,844.

The
chief constable successfully appealed to the EAT, which took the assessment for
future loss of earnings to a new tribunal and reduced the award for injury to
feelings to £25,000 and aggravated damages to £5,000. Note, the chief constable
had no issues with the amount of damages for psychiatric injury.

When
Vento appealed, the chief constable cross-appealed, arguing that the award for
injury to feelings was still excessive. Both were successful.

Although
the court found the 75 per cent chance of a full police career was rather high,
the tribunal’s decision was not perverse on the facts and so the court
reinstated the award for loss of future earnings.

The
court then identified three bands of damages for injury to feelings; a top band
of £15,000-£25,000 where there is a lengthy campaign of harassment, a middle
band of £5,000-£15,000 for less serious cases, and a lower band of £500-£5,000
for one-off acts of discrimination. Taking into account the Judicial Studies
Board guidelines (which are used for assessing damages for personal injury),
the court reduced the award for injury to feelings to £18,000, and aggravated
damages to £5,000.

Adding
injury to insult as a result of poor procedure
McCabe v Cornwall County Council and others, Court of Appeal, 19
December 2002, All ER (D) 294

McCabe,
a school teacher, was accused of inappropriate conduct towards female pupils.
However, the school’s approach to the allegations was reactive, rather than in
accordance with its procedure.

McCabe
was unaware of the allegations made against him for more than four months and
was kept on suspension for more than a year before he was actually dismissed.
His subsequent unfair dismissal claim against the school was successful as a
result of the procedural irregularities.

What
is significant in this case, however, is that McCabe went on to successfully
claim compensation for mental injury caused by the school’s disciplinary
process, based on the same procedural errors.

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Δ

The
Court of Appeal rejected any argument that unfair dismissal claims and those
for breach of trust and confidence arising from the manner of dismissal, are
mutually exclusive. A duty of mutual trust and confidence is implied into every
contract of employment. Claims alleging breach of that duty therefore exist
independently in Common Law, and can be brought regardless of whether dismissal
takes place.

It
will be for the trial judge in any given case to decide where the line should
be drawn between unfair dismissal within the Employment Rights Act 1996, and
conduct prior to dismissal, which breaches Common Law rights and gives rise to
compensation.