Related posts:No related photos. EAT refuses to interfere with tribunals injury awardOn 1 Feb 2002 in Personnel Today Previous Article Next Article A £10,000 award for sexual harassment has been upheld on appeal even thoughthe appeals tribunal described the level of compensation as ‘generous’£10,000 award for injury to feelings not excessive Bennett t/a Foxbar Hotel v Reid IDS Brief 699, EAT Ms Reid brought a successful claim for sex discrimination after experiencing12 months of sexual harassment which culminated in her dismissal. The tribunalawarded her £10,000 for injury to feelings after finding the treatment shesuffered was distasteful and unpleasant, especially as Mr Bennett had attemptedto take advantage of his economic power over Reid. The tribunal was satisfiedthat Reid was seriously distressed, angered and hurt by Bennett’s conduct, thather distress and misery lasted for a long period and intensified after herdismissal. On appeal, Bennett argued that the award was punitive and grosslydisproportionate taking into account the evidence given by Reid. Moreover, theaward was excessive when compared to a personal injury award for a comparablepsychiatric injury. Although the EAT was of the view the award of £10,000 was”generous”, it considered the nature of the conduct proved againstBennett and its effect on Reid and held the award was not out of proportion towhat might reasonably have been awarded. The appeal was dismissed. Key points – The latest available figure for the average injury to feelings awards insexual harassment cases is £6,423. – Tribunals award sums for injury to feelings on a subjective basis.However, in the case of ICTS (UK) Ltd v Tchoula  IRLR 643, the EATestablished that there are two categories of possible awards, a higher and alower one depending on whether there was a persistent and sustained campaign ofdiscrimination. In that case the tribunal reduced the injury to feelings awardfrom £22,000 to £7,500 on the grounds the initial award was excessive. – The appeal courts will only interfere with the tribunal’s award if itfinds the lower court has erred in principle or reached a figure “totallydisproportionate” to what it believes the appropriate level would be. – Employers should take complaints of harassment seriously and deal withthem as soon as possible to avoid the likelihood of a higher injury to feelingssum being awarded against them. Confidential references to be disclosed University of Glasgow v Jindal Digest No 49, autumn 2001, EAT, EOR Jindal failed to obtain the position of chairman at the university becauseof adverse references provided in confidence by third parties. Jindal claimedrace discrimination, and successfully sought disclosure of the references. Thetribunal held that as the references included details of the circumstances uponwhich the university had reached its decision, fairness dictated that Jindalshould have sight of them and be aware of who wrote them. The universityunsuccessfully appealed to the EAT. While the disclosure of confidentialinformation, particularly in relation to third-party references, is highlysensitive, the EAT ruled the tribunal had applied the correct test inconsidering both the relevance of the documents and the necessity of disclosurein order to deal fairly with the proceedings. Other than removing the names itwas not possible to make the documents anonymous and, in any event, the EATheld Jindal should know not only who the authors were but also theirprofessional and racial background. Key points – The subject’s right to know the content of a reference is a grey area.Section 7 of the Data Protection Act 1998 prohibits access to a confidentialreference which has been given by an employer for the purposes of education,training or employment. – Case law and the Human Rights Act (which enshrines the right to a fairhearing) suggests that individuals may have a right to know if a reference isderogatory. Where respondents rely on particular documents to arrive at aparticular decision, it will sometimes be necessary for a full and fair hearingthat the applicant should know not only the content of references but who wrotethem. – HR should encourage managers to think about the possible effect of suchdocuments before writing them and ensure they would withstand scrutiny in atribunal. – For further advice in relation to references, turn to our policy clinic onpage 21. Reasonableness of dismissal Meakin v Liverpool CC Leisure Services Directorate Unreported, September 2001, EAT Meakin was a caretaker with 28 years’ service. On 15 July 1998 a fight tookplace at the council’s premises between Meakin and Forde. Following aninvestigation, both employees were dismissed. Meakin’s internal appeal failed.Meakin’s unfair dismissal claim failed. He argued that dismissal was too severeas no mitigating factors had been considered, namely his length of service,clean record, the employer’s rejection of Forde’s racist behaviour towardsMeakin, unwarranted suggestions made by Forde about Meakin’s sister and thatduring the fight, Forde had had his hands around Meakin’s neck. Meakin’s appeal to the EAT also failed. Both the council and tribunal hadconsidered all points of mitigation that could have been made on behalf ofMeakin. Even if there were differences between Meakin and Forde such as lengthof service, Meakin’s misconduct could still merit dismissal. If this was thecase, even taking into account long service and past good conduct, the factthat the other employee involved had a less good record was irrelevant. Key points – The test for the reasonableness of a dismissal is that outlined in BritishHome Stores Ltd v Burchell  IRLR 379: (1) Did the employer believemisconduct had occurred? (2) Was that a reasonable belief in the light of whatit knew at the time? (3) Was it a belief based on reasonable investigation? (4)Was it reasonable to dismiss having regard to the gravity of that misconduct? – The tribunal must not decide the matter on what it would have done in theemployer’s position, as long as the dismissal is within the range of reasonableresponses available. – In dismissal cases involving more than one employee, the position of eachshould, in principle, be considered separately. But just because one has moremitigating factors than another does not mean dismissal is unreasonable forboth. Dismissal for asserting statutory right automatically unfair Silva & anr v Albion Hotel (Freshwater) Unreported, November 2001, EAT Silva was contractually entitled to a bonus and when this was not paid hecomplained to Albion. In March 1999, he was dismissed for poor management andreceived no bonus. As Silva did not have one year’s service, he could not claim unfairdismissal. Instead, he claimed his dismissal was automatically unfair becausethe principal reason for it was his allegation that Albion had infringed astatutory right, namely his right not to suffer unlawful deductions from”wages”, which included non-payment of the bonus. This claim was notsubject to a qualifying period and provided Silva acted in good faith whenmaking it (which was a question of fact) it was immaterial whether Silvaactually had that statutory right or indeed whether Albion had breached it. Thetribunal held Silva had brought the claim in good faith and he was entitled tothe bonus. His dismissal was automatically unfair. The EAT upheld this part ofthe tribunal decision. Key points – Section 104 of the Employment Rights Act treats a dismissal asautomatically unfair if the principle reason for the dismissal is that theemployee alleged that the employer had infringed a relevant statutory right,such as unlawfully deducting wages. There is no qualifying period for bringinga claim. – Employees making allegations of infringements do not have to spell outprecisely the section of the Act that has been infringed but must make itreasonably clear to the employer what right they believe has been infringed. – Even if the employer is certain no statutory right has been infringed, itshould still think carefully before dismissing – as long as the tribunal findsthe employee made the allegation in good faith, it can still rule the dismissalautomatically unfair. Incorporation of collective agreement terms Radford v LTI Limited IDS Brief 698, EAT LTI recognised three trade unions. The most recent collective agreementstated that it would remain in force until 31 July 1998. In October 1998 LTI informed the workforce of impending redundancies. Theunions said the redundancy procedure described in the collective agreementshould be applied, but LTI’s position was that the agreement had expired and analternative selection procedure was used. Radford’s score placed him in theredundancy pool, and he was dismissed. He successfully claimed unfair dismissal.Although the collective agreement was not incorporated into Radford’scontract, because it was not of day-to-day significance to the relationshipbetween him and LTI, the consultation and selection criteria used had beeninadequate. Both parties appealed to the EAT, which confirmed that the tribunalhad been entitled to find the selection procedures in the collective agreementwere not incorporated because they were not of day-to-day significance. The tribunal found Radford had not been adequately consulted on anindividual basis. However, the tribunal had erred in not asking whether theconsultation was so inadequate as to render the dismissal unfair. Likewise, inrelation to the selection criteria, the tribunal had erred in substituting itsown decision instead of considering what a reasonable employer would have done.Accordingly, Radford’s dismissal was found to be fair. Key points – Redundancy selection procedures laid out in collective agreements areunlikely to be incorporated into the employment contract unless there isexpress provision, because they do not have day-to-day significance in theemployment relationship. – A tribunal may decide some aspects of an agreement are part of thecontract and others not. Provisions for enhanced payments over and aboveredundancy pay, for instance, might well be incorporated. – Where no consultation about redundancy has taken place with either thetrade union or employee the dismissal will normally be unfair unless thetribunal finds a reasonable employer would have concluded consultation wouldhave been utterly futile. – Collective consultation over selection criteria does not release theemployer from its obligation to consult individually with selected employees. – Whether consultation in any particular case was so inadequate as to renderthe dismissal unfair is a question of fact and degree for the tribunal. Disability discrimination – who’s the correct comparator? Cosgrove v Caesar & Howie IDS Brief 698, EAT Cosgrove was employed as a secretary. She became depressed and, after beingabsent for 12 months, was dismissed. Cosgrove presented claims for unfairdismissal and disability discrimination. The tribunal found no evidence that Cosgrove had been treated anydifferently from the way her employer would have treated anyone else who hadbeen absent for a year. It also noted that neither Cosgrove nor her doctorcould suggest any reasonable changes to her work arrangements. Thediscrimination claim was dismissed. Cosgrove appealed. The EAT decided thetribunal’s approach was incorrect. The EAT found the material reason forCosgrove’s dismissal was her absence and uncertainty as to whether she wouldreturn. It then asked whether the reason for her dismissal related todisability and found that it did. Lastly, the EAT asked if the employer wouldhave dismissed another employee to whom the material reason did not apply. Itsaid the proper comparison was with an employee who had not been absent anddecided there would not have been a reason to dismiss such a person unlessother potentially fair grounds for dismissal existed. Cosgrove had been treatedless favourably than someone to whom the material reason did not apply. The EAT then looked at whether the apparent discrimination was justified andsaid that it cannot be justified where the employer has made no considerationof reasonable adjustments. Cosgrove’s employer had not believed she wasdisabled so had not considered adjustments such as shorter working hours or amove to another office. The EAT found there was discrimination and remitted thecase for a remedies hearing. Key points – This case follows the Court of Appeal decision in Clark v Novacold Ltd IRLR 420, which held that if a person is dismissed for a disabilityrelated absence, the correct comparator for deciding on less favourabletreatment is a person who is able to attend work, rather than a non-disabledperson who has also been absent. – Employers will not be able to justify dismissal in these circumstancesunless they have considered reasonable adjustments under section 6 of the DDA.The onus is on the employer: simply accepting the opinion of the employee orthe employee’s doctor will not discharge this obligation. Comments are closed.