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Issue 75 (December 2002)
Help for the aged
Case of Kells illuminates scope of law
Tribunal compensation limits go up
Manner of dismissal compensation
Court of Appeal sets out remedies
On the horizon: Employment Act 2002
Court of Appeal sets out remedies
Vento v Chief Constable of West Yorkshire Police  EWCA Civ 1871
The proper level of compensation in discrimination cases has long been a battleground with two of the most controversial elements being how Employment Tribunals should approach awards for injury to feelings and how to assess the loss of the chance of a career where the discrimination has resulted in dismissal or loss of employment.
For the first time for over a decade the Court of Appeal has considered these issues and set down guidelines in both areas. This case is likely to become the benchmark for the foreseeable future.
Ms Vento was a probationer police officer who had been unlawfully sexually discriminated against for a period of a year in the form of criticism of her conduct, her personal life and her character in an unwarranted, aggressive and demoralising manner and a trumped up dismissal. The Tribunal awarded her compensation on the basis that she had a 75% chance of working in the police force for the rest of her career. The award came to £170,000 as it was discounted to reflect other likely earnings and for her receiving it as a lump sum rather than month by month as she would have done had she been working as a police officer for the rest of her life. For injury to feelings she received £50,000 plus £15,000 aggravated damages and £9,000 for psychiatric damage. The psychiatric damage took the form of clinical depression and adjustment disorder. Ms Vento had been affected for a period of three years by the discrimination.
The Employment Appeal Tribunal held that the assessment of a 75% chance of Ms Vento remaining in the police force was too high and remitted that part of the case back to the Tribunal. On the other parts of the award, the EAT reduced the injury to feelings to £30,000 and the aggravated damages to £5,000 but did not interfere with the psychiatric damage award. Both parties appealed to the Court of Appeal.
Loss of future career prospects
The EAT had overturned the Tribunal's decision that there was a 75% chance of Ms Vento remaining a police officer had she not been discriminated against because the statistical evidence was that only 9% of women serve more than 18 years (the number of years to take Ms Vento to retirement age) and for men there is a less than 50% statistical chance of serving this long.
The Court of Appeal explained that a forecast is required to answer the question of the likely length of future service - to be answered on the basis of the best assessment that can be made on the relevant material available to the court or tribunal. Statistical material - such as the percentage of women in the past who have served until retirement age - will be relevant, but that is not the only relevant information.
In this case the tribunal had other evidence - such as special factors about Ms Vento's long held career ambitions to become a police officer, her determination to continue notwithstanding the discrimination and the fact that the statistics on women police officers were inevitably historical and did not reflect up to date female career patterns, nor take account of family friendly and equal opportunities policies recently introduced by the police service. Nor did the statistics take account of the fact that Ms Vento could no longer have children and so would not be leaving the force to start a family.
So the Court of Appeal reinstated the original tribunal decision - it was a permissible conclusion and the tribunal had evidence to depart from the statistical evidence in forecasting the Ms Vento's future career prospects if she had not been discriminated against. The importance of the case is the endorsement of a tribunal's right to look beyond headline statistics to form its own judgment from the information before it provided it can justify its thinking. Even where such an approach produces startling results.
Injury to feelings
Ms Vento was less fortunate in this part of the case. Her injury to feelings compensation went down still further to £18,000 although the aggravated and psychiatric damages awarded by the EAT were upheld, making a total of £32,000 for general damages. The Court of Appeal approached assessment of damages by reference to other cases - both discrimination and personal injury. As the original tribunal's decision to award a total of £74,000 was seriously out of line with other cases, it amounted to an error of law, the Court held. For example, £74,000 is the going rate for total deafness and loss of speech, or for loss of vision in one eye and reduced vision in the remaining eye or moderate brain damage involving epilepsy in a personal injury claim under Judicial Studies Board guidelines.
The Court of Appeal was at pains to explain that the reduction in the amount of compensation was made solely to bring the global award more into line with conventional wisdom on levels of compensation for non-financial losses.
The Court of Appeal warned of the risk of overlap between psychiatric damage and injury to feelings - and warned tribunals against inadvertent double counting, which they said had happened to a degree in this case.
The Court of Appeal went on to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric damage or similar personal injury. This means that the earlier case in the EAT of ICTS (UK) Ltd v Tchoula  IRLR 643 is no longer good law.
The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.
The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.
Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. £500 is pretty much the minimum award - anything less fails to give proper recognition of injury to feelings.
The correct approach is to identify firstly the band the discrimination falls into, and there is then flexibility within each band for the tribunal to award what is fair, reasonable and just compensation in the particular circumstances of the case.
Aggravated damages, on top of the injury to feeling award - both whether to award them, and if so how much to award, will depend on all the circumstances of the discrimination and the way in which the complaint of discrimination has been handled. It seems therefore that the trend to award a global sum, inclusive of both injury to feelings and aggravated damages may not survive this judgment. Time will tell. But whether awarded as a separate figure or not, regard must be had to the overall size of the award of compensation for all non-financial
'Please don't make me redundant. I don't want it now. I've changed my mind.' David Brent's final words in the second series of The Office, the excellent BBC2 fly on the wall tragi-com by Ricky Gervaise which throws the spotlight on poor management (about time too). His plea is met with embarrassed silence and a mumbled reply about the wheels already being in motion. The compromise agreement has been drawn up ('I think you'll find it quite attractive'), the staff informed of his departure and Gareth appointed acting manager, ready to use his Territorial Army skills in his management style.
But something's not right here. After a temporary distraction, sharing Tim's pain in his hour of rejection by Dawn, is it too late to notice that something is wrong? Gareth has been appointed to David Brent's job while they recruit externally and David Brent is being made redundant. No wonder senior management needed the compromise agreement to be signed. Redundancy? What redundancy? The job has not disappeared so the employer's 'redundancy' reason for dismissal is hopeless and without showing a potentially fair reason for dismissal, victory, on liability at least, is certain for Brent. Assessing compensation would be more difficult - reinstatement perhaps? What about contributory fault? Or did he agree to resign? Does it constitute a dismissal at all?
David Brent needs a trade union official or Thompsons lawyer.