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Issue 80 (June/July 2003)
It's not all over
Paying for all the damage
On the move
One man and his job: it's still about Schmidt
Holidays are here again: roundup of recent cases
Worker status: it's a jungle out there
Employer's belief
Essa v Laing [2003] IRLR 346
The legal issue in this case concerned the circumstances under which liability for personal injury in race discrimination cases can be established.
The general rule in the law of negligence is that if an injury is not reasonably foreseeable, then there is no actionable loss against the defendant. So ordinarily, if an employer through their negligence causes an injury to an employee at work, then the employer will only be liable for any injury which could have been reasonably foreseen as a consequence of the employer's negligent action.
In Essa the EAT has decided that the ordinary test of reasonable forseeability does not apply in race discrimination cases and that compensation for unlawful discrimination is not limited to cases of reasonably foreseeable harm.
The applicant was an amateur boxer, earning a living as a labourer on a construction site. He suffered acts of humiliation and insult through being black, culminating in racial abuse from the foreman in front of colleagues. He became depressed and his boxing suffered. The Tribunal upheld his claim of racial discrimination and awarded compensation, but not for psychological damage because, on the facts, it considered that it had not been reasonably foreseeable.
On appeal the Employment Appeal Tribunal held that the common law test of reasonably foreseeable harm did not apply and a more straightforward causal link test applied. The EAT held that the Employment Tribunal had applied the wrong test. An applicant who has been the victim of unlawful race discrimination is entitled to compensation where they can show a direct causal link between the act of discrimination and their loss. Compensation is not limited to cases of reasonably foreseeable harm. The liability imposed by s.57(1) of the Race Relations Act is a strict liability. The statutory tort created by the Act is designed to protect persons from race discrimination and consequent injury, including personal injury such as psychiatric damage.
Clearly the test adopted by the EAT is more effective in protecting the individual from harm such as psychiatric damage, which must have been the aim of the legislation.