This week’s case round-up
Additional compensation
Singh v University Hospital NHS Trust EAT 1409/01
Singh, a hospital porter, was absent from work for an extended period
following surgery. On his return to work, however, he had a number of
altercations with his manager, which Singh believed to be racially motivated. A
tribunal upheld his subsequent claim of race discrimination.
When considering appropriate compensation, however, although the tribunal
awarded Singh lost earnings and compensation for injury to feelings it declined
to award him additional, aggravated damages. The Employment Appeal Tribunal
rejected his appeal, but clarified the principles upon which tribunals should
rely when considering whether aggravated compensation is appropriate:
– It can be appropriate in discrimination cases
– It is only ever relevant where the discriminator has acted in a
high-handed, malicious, insulting or oppressive manner. Stress or injury to the
victim is not, of itself, sufficient
– The tribunal will need to determine whether conduct meets the above
criteria on the individual facts of the case
– Aggravated compensation may be included in awards for injury to feelings
or be dealt with separately. It is not dictated by the level or category of
injury to feelings awards
– The award should be compensatory and not punitive
Can a competitive interview be discrimitary?
Archibald v Fife Council, EATS/0025/02
For a number of years, Archibald worked at the council as a road sweeper, a
grade 1 position. Following surgery, however, she had mobility difficulties and
was deemed ‘disabled’ within the meaning of the Disability Discrimination Act
1995. She could not continue in a road sweeper role.
Despite having undertaken a number of administrative courses during her
sickness absence, the alternative, sedentary posts for which Archibald put
herself forward at the council, were all of higher grades. She also lacked
relevant clerical experience. As a result, after in excess of 100 internal
applications, Archibald had not secured an alternative position. She
accordingly brought a tribunal claim against the council alleging that, as a
disabled person, the council failed to make reasonable adjustments for her
disability by subjecting her to competitive interview.
Both the Employment Tribunal and the Employment Appeal Tribunal, disagreed,
however. While insisting that competitive interviews fell within an
‘arrangement’ for the purposes of the Disability Discrimination Act 1995 and
could potentially be discriminatory, here it was not. All job applicants were
subjected to the same process. The council was justified in wanting to obtain
the best person for the relevant job and had approached the selection process
in a fair and even-handed manner.
