Continuing our series on the implications of recent significant cases, Anthony Korn, a barrister at 199 Strand Chambers, looks at the issues
Injury to feelings award
Essa v Laing Ltd, EAT, 2003
Can an award for injury to feelings be made where the extent of the injury is unforeseen by the employer? This issue is addressed by the Employment Appeal Tribunal in Essa v Laing Ltd, 2003
Essa, who is Welsh and of black Somali descent, was employed by Laing as a construction worker. He was a successful amateur boxer who had represented Wales on a number of occasions before turning professional.
In June 1999, he began work on the Millennium Stadium, and was subjected to petty acts of humiliation and insults. However, Essa's complaint of unlawful racial discrimination followed a supervisor's remark, who, in front of a gang of 15 men, said "make sure that black c*** doesn't wander off", referring to Essa.
Essa complained to his employer, but considered that his complaint was not taken seriously and thereafter he was taunted by other employees.
He took his case to an employment tribunal claiming unlawful racial discrimination and victimisation contrary to the Race Relations Act 1976. The tribunal upheld Essa's complaint of race discrimination, but rejected his complaint of victimisation.
At the hearing, evidence was given that as a result of the racial abuse, Essa had suffered a dramatic personality change. He was said beforehand to have been a "kind, cheerful, happy go-lucky and hardworking individual... careful of the company he kept, who did not drink, smoke or swear and took a passionate interest in boxing". Afterwards he was described as "morose, withdrawn... mixing with undesirable company and to have smoked, drank and used bad language. He lost his interest in boxing and his Welsh identity was undermined". He would not get out of bed to look for work.
The tribunal ruled that it was only entitled to award compensation for such injury as was "a reasonably foreseeable" consequence of the unlawful discrimination Essa had suffered and concluded that although he had suffered hurt and humiliation, his reaction was "extreme" and unforeseeable. It assessed compensation for injury to feelings at £5,000, noting the abuse was a "one-off incident" for which Essa had received an apology.