Ruling sets guide for injury to feelings pay

In a recent discrimination case the EAT set out guidelines for compensation levels in instances of injury to feelings

Compensation for injury to feelings is an important part of an award in a discrimination case. In ICTS (UK) v Tchoula (2000), the EAT reviews the principles on which such awards are based and gives guidance on the factors which a tribunal should consider in making its award.

Tchoula, who came to the UK from Cameroon in 1988, was employed by ICTS as a security officer based at South Bank University, London. In May 1997 he made a complaint of race discrimination against his employer. Subsequently he was dismissed for allegedly sleeping on duty. Tchoula claimed that his dismissal and the events leading up to it were discriminatory and also amounted to victimisation as a result of his earlier complaint.

The tribunal rejected Tchoula’s claims of racial discrimination but upheld three of his complaints of victimisation. It found that both the disciplinary action taken against Tchoula and the procedure followed by ICTS were tainted by his earlier complaint of racial discrimination.

At the remedies hearing, the tribunal awarded over £13,000 as compensation for loss of earnings and a further £22,000 (plus interest) as compensation for injury to feelings as well as £5,000 as aggravated damages. The company appealed.

On appeal, Tchoula argued that the tribunal should have awarded separate sums as compensation for injury to feelings for each of his complaints of victimisation, rather than a “global” figure, and should have accepted his assertion that his marriage had broken down as a result of the stress caused by his former employer’s behaviour. Given this, he said he should have been awarded over £112,000 as compensation.

The company argued that the tribunal’s award was excessive with regard to awards made in personal injury cases for pain and suffering. no evidence to justify an award of aggravated damages.

EAT decision

Partly allowing the appeal, the EAT ruled:

• The tribunal was entitled to make a global award of compensation for injury to feelings in the case because the acts of unlawful victimisation it had upheld all related to the same incident.

• The award of £22,000 as compensation for injury to feelings in the present case was excessive as Tchoula’s allegations of a continuing campaign of discrimination had been rejected by the tribunal. The EAT considered an award of £7,500 to be appropriate in the present case.

• The award of £5,000 as aggravated damages was also excessive, but an award of £2,500 was justified because the evidence showed the company had acted in a “high handed” and “insulting” manner.

The EAT rejected Tchoula’s contention that he should have been awarded additional compensation for the breakdown of his marriage because the tribunal had not accepted the employer had been the cause of his matrimonial problems. However the EAT said that the tribunal would have been entitled to increase its award had this been proved.

The EAT divided the case law into two brackets: those which justified a “higher” and a “lower” award. But it is clear from earlier case law that there is a third category of cases where an award may be even less than in the EAT’s lower bracket. The current position is summarised below.

Key points

• Compensation for injury to feelings may be awarded in all cases of unlawful discrimination.

• A higher award between £15,000-£25,000 may be justified where the complainant has shown that he or she has been the victim of a continuous campaign of discriminatory treatment which has resulted in considerable distress.

• A lower award between £50,000-£15,000 may be more appropriate where the complaint is serious but was an isolated incident.

• An award of between £750-£1,500 is the likely minimum award of compensation for injury to feelings where a discrimination complaint is upheld.

By Anthony Korn, a barrister at 199 Strand Chambers

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