Veitch Penny LLP - Exeter | Crediton, Devon

Case

Adams v Hackney Borough Council - Employment Appeal Tribunal (6 February 2003)

Issues

(1) Discrimination
(2) Compensation
(3) Trade Unions

Facts

The Respondent was employed by the Appellant local authority as an administration support manager in the external catering department. In 2000, the employee was appointed to be a UNISON shop steward. She was to represent the interests of the workforce during negotiations with management regarding the restructuring of the department. In May, the Respondent was interviewed for the post of office manager. At the interview, the Respondent was told that she was to be promoted. However, in June, the Appellant withdrew its offer to the Respondent on the basis that she was inexperienced, lacked flexibility and had taken ten days sickness absence during the previous year.

The Respondent made a complaint to the employment tribunal on the basis that she had been discriminated against because of her trade union activities.

The Tribunal held that she had suffered discrimination as a result of her trade union role. She was awarded her £5000 by way of compensation for injury to feelings.

The Appellant authority appealed against the award on the basis that the level of award was excessive. It was submitted that the Tribunal had failed to give proper reasons when setting the level of compensation to be awarded. It should have made a clear comparison between the appropriate range of awards in personal injury cases and should not have treated the range of awards for injury to feelings as in the same range as those that would be awarded in cases of sex and or race discrimination.

Subsequently, the Respondent accepted a temporary position with the local authority that was two grades above the position of the job offer that had been withdrawn.

Decision

The appeal would be dismissed.

The Court of Appeal decision in Vento –v- Chief Constable of West Yorkshire Police (2002) was the authority for the principle that it was impossible to justify or explain a particular sum for injury to feelings in this type of case in the same way as financial loss or compensation for bodily injury. Although the original Tribunal made no comparisons to any personal injury cases, it was felt by the Appeal Tribunal that the award ought to have a broad general similarity to the range of awards in personal injury cases. The Tribunal did not have to state where it would have placed the award in comparison to the range of personal injury awards, although it did give fully adequate reasons for their decision and had referred to those features that justified the level of award.

Furthermore, there was nothing to suggest that awards for discrimination based on trade union grounds should receive a lower award of compensation when compared against other forms of discrimination (e.g. sex and race discrimination). The level of award was dependent upon the circumstances of each case, by reference to the injury suffered, whether any loss had actually been sustained, and evidence relating to the nature of the discriminatory conduct. It was questioned whether someone refused employment on those grounds would suffer any injury to feelings at all, as the status of being a trade union member was not likely, in most cases, to be a characteristic which was central to a person’s sense of self respect and self esteem. Accordingly, purely making good the financial loss suffered may be adequate compensation. Even if there was injury to feelings, the distress was likely to be less severe than with forms of discrimination that engaged the core of a person’s being. The aim was to compensate and not punish, thus, the compensation to be awarded ought not to be the same in each case.

The Appeal Tribunal concluded that the original Tribunal's decision had been correct and the award for injury to feelings, whilst on the high side, was not so excessive as to justify the Appeal Tribunal’s intervention.

Comments

This case may prove to be, in conjunction with the decision in Vento, a useful pointer for future Tribunals when considering making awards of compensation in respect of trade union activities.