Veitch Penny LLP - Exeter | Crediton, Devon

Case

Jiad v Byford and Others - Court of Appeal (30/1/03)

Issues

(1) Discrimination
(2) Psychological injury
(3) Victimisation

Facts

The Applicant had been involved in litigation with his employer, the BBC. A complaint was made to the Employment Tribunal alleging that he had been harassed and bullied by one of the in-house solicitors. He submitted that this amounted to racial discrimination (both direct and indirect) and victimisation. It was also claimed that there had also be a failure by the other respondents to properly investigate the Applicant's concerns, who had written to a manager requesting protection from the harassment and bullying which was causing him psychological stress and humiliation. This correspondence was passed to a human resources manager, who responded, and copied the correspondence to the Director General.

The proceedings were issued under sections 1 and 2(1) of the Race Relations Act 1976. The proceedings stated that the solicitor's actions had caused the Applicant psychological and physical stress, depression, fear and humiliation. He had been forced to consult his general practitioner and was prescribed medication.

The respondents then applied to the employment tribunal to strike out the Applicant's case.

The Tribunal struck out the claim, finding that the proceedings had been brought vexatiously. It was found that the Applicant had suffered no detriment resulting from the alleged discrimination or victimisation. Furthermore, the Applicant had been unable to show a comparator of a different race who had been treated more favourably. It was noted that the Applicant was the only Iraqi employed by the BBC.

The Applicant appealed against the decision. The appeal was dismissed by the Employment Appeal Tribunal (EAT) on the basis that "an unjustified sense of grievance" could not amount to a detriment for the purposes of the Act. Some substantial physical or economic consequence was required.

The Applicant appealed against that decision stating that the tribunal had erred in finding that his claim, if put at the highest level, was bound to fail.

Decision

The appeal would be allowed. Whilst transitory hurt feelings might not suffice, enduring psychological injury could constitute detriment on the basis that a reasonable worker would regard himself as being at a disadvantage.

It was found that the Applicant's case against those respondents other than the solicitor had no merit and the Tribunal had been correct to strike out the claims. However, the case against the solicitor crossed the line of possibility and therefore was not bound to fail because of a lack of detriment suffered by the Applicant. Likewise, the claim was not bound to fail for want of a comparator. Accordingly, the Tribunal had erred in striking out the claim in respect of the solicitor. The matter was remitted to be heard by a different tribunal.

Comments

The Appeal Tribunal's decision reflected Lord Hoffman's speech in Chief Constable of West Yorkshire Police & Others -v- Mr R Khan (2001), which noted that whilst a trivial disadvantage would not satisfy the definition of 'detriment', it was also not necessary for there to be a physical or economic consequence.