EAT refuses to interfere with tribunals injury award

A £10,000 award for sexual harassment has been upheld on appeal even though
the appeals tribunal described the level of compensation as ‘generous’

£10,000 award for injury to feelings not excessive

Bennett t/a Foxbar Hotel v Reid
IDS Brief 699, EAT

Ms Reid brought a successful claim for sex discrimination after experiencing
12 months of sexual harassment which culminated in her dismissal. The tribunal
awarded her £10,000 for injury to feelings after finding the treatment she
suffered was distasteful and unpleasant, especially as Mr Bennett had attempted
to take advantage of his economic power over Reid. The tribunal was satisfied
that Reid was seriously distressed, angered and hurt by Bennett’s conduct, that
her distress and misery lasted for a long period and intensified after her

On appeal, Bennett argued that the award was punitive and grossly
disproportionate taking into account the evidence given by Reid. Moreover, the
award was excessive when compared to a personal injury award for a comparable
psychiatric injury. Although the EAT was of the view the award of £10,000 was
"generous", it considered the nature of the conduct proved against
Bennett and its effect on Reid and held the award was not out of proportion to
what might reasonably have been awarded. The appeal was dismissed.

Key points

– The latest available figure for the average injury to feelings awards in
sexual harassment cases is £6,423.

– Tribunals award sums for injury to feelings on a subjective basis.
However, in the case of ICTS (UK) Ltd v Tchoula [2000] IRLR 643, the EAT
established that there are two categories of possible awards, a higher and a
lower one depending on whether there was a persistent and sustained campaign of
discrimination. In that case the tribunal reduced the injury to feelings award
from £22,000 to £7,500 on the grounds the initial award was excessive.

– The appeal courts will only interfere with the tribunal’s award if it
finds the lower court has erred in principle or reached a figure "totally
disproportionate" to what it believes the appropriate level would be.

– Employers should take complaints of harassment seriously and deal with
them as soon as possible to avoid the likelihood of a higher injury to feelings
sum being awarded against them.

Confidential references to be disclosed

University of Glasgow v Jindal
Digest No 49, autumn 2001, EAT, EOR

Jindal failed to obtain the position of chairman at the university because
of adverse references provided in confidence by third parties. Jindal claimed
race discrimination, and successfully sought disclosure of the references. The
tribunal held that as the references included details of the circumstances upon
which the university had reached its decision, fairness dictated that Jindal
should have sight of them and be aware of who wrote them. The university
unsuccessfully appealed to the EAT. While the disclosure of confidential
information, particularly in relation to third-party references, is highly
sensitive, the EAT ruled the tribunal had applied the correct test in
considering both the relevance of the documents and the necessity of disclosure
in order to deal fairly with the proceedings. Other than removing the names it
was not possible to make the documents anonymous and, in any event, the EAT
held Jindal should know not only who the authors were but also their
professional and racial background.

Key points

– The subject’s right to know the content of a reference is a grey area.
Section 7 of the Data Protection Act 1998 prohibits access to a confidential
reference which has been given by an employer for the purposes of education,
training or employment.

– Case law and the Human Rights Act (which enshrines the right to a fair
hearing) suggests that individuals may have a right to know if a reference is
derogatory. Where respondents rely on particular documents to arrive at a
particular decision, it will sometimes be necessary for a full and fair hearing
that the applicant should know not only the content of references but who wrote

– HR should encourage managers to think about the possible effect of such
documents before writing them and ensure they would withstand scrutiny in a

– For further advice in relation to references, turn to our policy clinic on
page 21.

Reasonableness of dismissal

Meakin v Liverpool CC Leisure Services Directorate
Unreported, September 2001, EAT

Meakin was a caretaker with 28 years’ service. On 15 July 1998 a fight took
place at the council’s premises between Meakin and Forde. Following an
investigation, both employees were dismissed. Meakin’s internal appeal failed.
Meakin’s unfair dismissal claim failed. He argued that dismissal was too severe
as no mitigating factors had been considered, namely his length of service,
clean record, the employer’s rejection of Forde’s racist behaviour towards
Meakin, unwarranted suggestions made by Forde about Meakin’s sister and that
during the fight, Forde had had his hands around Meakin’s neck.

Meakin’s appeal to the EAT also failed. Both the council and tribunal had
considered all points of mitigation that could have been made on behalf of
Meakin. Even if there were differences between Meakin and Forde such as length
of service, Meakin’s misconduct could still merit dismissal. If this was the
case, even taking into account long service and past good conduct, the fact
that the other employee involved had a less good record was irrelevant.

Key points

– The test for the reasonableness of a dismissal is that outlined in British
Home Stores Ltd v Burchell [1978] IRLR 379: (1) Did the employer believe
misconduct had occurred? (2) Was that a reasonable belief in the light of what
it knew at the time? (3) Was it a belief based on reasonable investigation? (4)
Was it reasonable to dismiss having regard to the gravity of that misconduct?

– The tribunal must not decide the matter on what it would have done in the
employer’s position, as long as the dismissal is within the range of reasonable
responses available.

– In dismissal cases involving more than one employee, the position of each
should, in principle, be considered separately. But just because one has more
mitigating factors than another does not mean dismissal is unreasonable for

Dismissal for asserting statutory right automatically unfair

Silva & anr v Albion Hotel (Freshwater)
Unreported, November 2001, EAT

Silva was contractually entitled to a bonus and when this was not paid he
complained to Albion. In March 1999, he was dismissed for poor management and
received no bonus.

As Silva did not have one year’s service, he could not claim unfair
dismissal. Instead, he claimed his dismissal was automatically unfair because
the principal reason for it was his allegation that Albion had infringed a
statutory right, namely his right not to suffer unlawful deductions from
"wages", which included non-payment of the bonus. This claim was not
subject to a qualifying period and provided Silva acted in good faith when
making it (which was a question of fact) it was immaterial whether Silva
actually had that statutory right or indeed whether Albion had breached it. The
tribunal held Silva had brought the claim in good faith and he was entitled to
the bonus. His dismissal was automatically unfair. The EAT upheld this part of
the tribunal decision.

Key points

– Section 104 of the Employment Rights Act treats a dismissal as
automatically unfair if the principle reason for the dismissal is that the
employee alleged that the employer had infringed a relevant statutory right,
such as unlawfully deducting wages. There is no qualifying period for bringing
a claim.

– Employees making allegations of infringements do not have to spell out
precisely the section of the Act that has been infringed but must make it
reasonably clear to the employer what right they believe has been infringed.

– Even if the employer is certain no statutory right has been infringed, it
should still think carefully before dismissing – as long as the tribunal finds
the employee made the allegation in good faith, it can still rule the dismissal
automatically unfair.

Incorporation of collective agreement terms

Radford v LTI Limited
IDS Brief 698, EAT

LTI recognised three trade unions. The most recent collective agreement
stated that it would remain in force until 31 July 1998.

In October 1998 LTI informed the workforce of impending redundancies. The
unions said the redundancy procedure described in the collective agreement
should be applied, but LTI’s position was that the agreement had expired and an
alternative selection procedure was used. Radford’s score placed him in the
redundancy pool, and he was dismissed. He successfully claimed unfair dismissal.

Although the collective agreement was not incorporated into Radford’s
contract, because it was not of day-to-day significance to the relationship
between him and LTI, the consultation and selection criteria used had been
inadequate. Both parties appealed to the EAT, which confirmed that the tribunal
had been entitled to find the selection procedures in the collective agreement
were not incorporated because they were not of day-to-day significance.

The tribunal found Radford had not been adequately consulted on an
individual basis. However, the tribunal had erred in not asking whether the
consultation was so inadequate as to render the dismissal unfair. Likewise, in
relation to the selection criteria, the tribunal had erred in substituting its
own decision instead of considering what a reasonable employer would have done.
Accordingly, Radford’s dismissal was found to be fair.

Key points

– Redundancy selection procedures laid out in collective agreements are
unlikely to be incorporated into the employment contract unless there is
express provision, because they do not have day-to-day significance in the
employment relationship.

– A tribunal may decide some aspects of an agreement are part of the
contract and others not. Provisions for enhanced payments over and above
redundancy pay, for instance, might well be incorporated.

– Where no consultation about redundancy has taken place with either the
trade union or employee the dismissal will normally be unfair unless the
tribunal finds a reasonable employer would have concluded consultation would
have been utterly futile.

– Collective consultation over selection criteria does not release the
employer from its obligation to consult individually with selected employees.

– Whether consultation in any particular case was so inadequate as to render
the dismissal unfair is a question of fact and degree for the tribunal.

Disability discrimination – who’s the correct comparator?

Cosgrove v Caesar & Howie
IDS Brief 698, EAT

Cosgrove was employed as a secretary. She became depressed and, after being
absent for 12 months, was dismissed. Cosgrove presented claims for unfair
dismissal and disability discrimination.

The tribunal found no evidence that Cosgrove had been treated any
differently from the way her employer would have treated anyone else who had
been absent for a year. It also noted that neither Cosgrove nor her doctor
could suggest any reasonable changes to her work arrangements. The
discrimination claim was dismissed. Cosgrove appealed. The EAT decided the
tribunal’s approach was incorrect. The EAT found the material reason for
Cosgrove’s dismissal was her absence and uncertainty as to whether she would
return. It then asked whether the reason for her dismissal related to
disability and found that it did. Lastly, the EAT asked if the employer would
have dismissed another employee to whom the material reason did not apply. It
said the proper comparison was with an employee who had not been absent and
decided there would not have been a reason to dismiss such a person unless
other potentially fair grounds for dismissal existed. Cosgrove had been treated
less favourably than someone to whom the material reason did not apply.

The EAT then looked at whether the apparent discrimination was justified and
said that it cannot be justified where the employer has made no consideration
of reasonable adjustments. Cosgrove’s employer had not believed she was
disabled so had not considered adjustments such as shorter working hours or a
move to another office. The EAT found there was discrimination and remitted the
case for a remedies hearing.

Key points

– This case follows the Court of Appeal decision in Clark v Novacold Ltd
[1998] IRLR 420, which held that if a person is dismissed for a disability
related absence, the correct comparator for deciding on less favourable
treatment is a person who is able to attend work, rather than a non-disabled
person who has also been absent.

– Employers will not be able to justify dismissal in these circumstances
unless they have considered reasonable adjustments under section 6 of the DDA.
The onus is on the employer: simply accepting the opinion of the employee or
the employee’s doctor will not discharge this obligation.

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