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LTL 6/12/2011, Employment Appeal Tribunal - Simon Cheetham QC
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An employment tribunal had erred when making an award of aggravated damages by focusing on the seriousness of the employer's conduct in subjecting an employee to an unlawful detriment rather than the impact of that conduct on the employee, thereby introducing a punitive element. Aggravated damages were compensatory only in nature and represented an aspect of compensation for injury to feelings rather than a separate head of damages.
The appellant commissioner appealed against an employment tribunal's award of compensation to the respondent police officer (S).
S had reported dishonest conduct by another officer. S had then been suspended on unfounded disciplinary charges which were subsequently dropped. The tribunal found that S had been subjected to an unlawful detriment contrary to the Employment Rights Act 1996 Pt IVA by reason of having made a protected disclosure and awarded him £17,000 for injury to feelings and £20,000 in aggravated damages. S was pursuing a separate personal injury claim in relation to the effect on his mental health and compensation in respect of such injury was not included in the tribunal's award. The commissioners' challenge focused on the award of aggravated damages.
HELD: (1) The approach to the award of compensation for unlawful detriment under Pt IVA should be the same as in cases of unlawful discrimination. The subjecting of the claimant to the detriment was to be treated as a statutory tort, attracting an entitlement to compensation for so-called "injury to feelings" and, in an appropriate case, aggravated damages, Virgo Fidelis Senior School v Boyle  I.C.R. 1210 applied (see para.13 of judgment). (2) Each case depended on its facts and ultimately it was the total award that had to be assessed. However, £20,000 in aggravated damages was wholly excessive. Although the tribunal had correctly directed itself that the features on which it relied in making its award should not overlap with those in its award for injury to feelings, some of the features were part of the complaint itself rather than constituting something exceptional in the manner of the act or the commissioners' motivation. The tribunal was not necessarily guilty of double-counting but it was impossible to be confident about its analysis. There was a suspicion that the tribunal had made its award to reflect the seriousness of the conduct rather than the aggravation of the injury to S's feelings by that conduct, considerations which were punitive and not compensatory. The correct overall figure to compensate S was £30,000, Alexander v Secretary of State for the Home Department  1 W.L.R. 968, HM Prison Service v Johnson  I.C.R. 275, McConnell v Police Authority for Northern Ireland  N.I. 244, Tchoula v ICTS (UK) Ltd  I.C.R. 1191 applied and HM Prison Service v Salmon  I.R.L.R. 425 considered (paras 29-36). (3) The only purpose of aggravated damages was compensatory; they should not be awarded to punish a respondent's conduct. It was doubtful whether the practice of awarding aggravated damages as a separate head of compensation was a good thing. It would be sensible to follow the Scottish practice and make a single award for injury to feelings, taking into account those aggravating features currently dealt with under the separate head of aggravated damages, D Watt (Shetland) Ltd v Reid , British Telecommunications Plc v Reid  EWCA Civ 1675,  I.R.L.R. 327, Martins v Choudhary  EWCA Civ 1379,  1 W.L.R. 617 and McConnell considered. Although the difference between the two approaches was one of form rather than substance, the approach generally adopted in England was unsatisfactory. It required tribunals to make a distinction between the wrongful conduct and additional features of the respondent's conduct, and to do so by reference to a loose criterion of exceptionality. That exercise was artificial and ill-defined. There was a real risk of double-counting. Putting aggravated damages in a separate box could sometimes, if only subconsciously, lead tribunals to treat them as punitive and added an unnecessary level of complication and technicality to the assessment of compensation. Removing the concept as a head of compensation distinct from injury to feelings would simplify the law without diminishing the proper compensation available to victims of discrimination. Although it was not for the instant tribunal to try to prescribe a change in practice in the English tribunals, it would be a healthy reminder of the real nature of aggravated damages if any such awards were in future formulated as a sub-heading of "injury to feelings", for example "injury to feelings in the sum of £X, incorporating aggravated damages in the sum of £Y". The most important thing was that tribunals identified the main considerations which had led them to make the overall award for injury to feelings, specifying any aggravating or mitigating features to which they attached particular weight. What mattered was whether the total award for non-pecuniary loss was fair and proportionate, Vento v Chief Constable of West Yorkshire  EWCA Civ 1871,  I.C.R. 318 considered (paras 20, 25-28). (4) Employment tribunals had jurisdiction to make awards for personal injury caused by unlawful discrimination and it would almost always be better if such claims were dealt with in the same forum as other losses for which compensation was sought. Injury to feelings and injury to mental health were formally distinct but in practice there was an overlap, and it was difficult for the tribunal hearing whichever claim was decided second to assess the extent to which compensation had been given for what was in substance the same suffering, Salmon considered (para.8).