Employment Law

By Martin Edwards, Mace & Jones, Liverpool

Compensation for racial discriminationGbaja-Biamila v DHL International (UK) Ltd and others (2000) ICR 730

A Nigerian was rejected for promotion to several jobs on the ground of inadequate verbal communication skills.

An Employment Appeal Tribunal (EAT) upheld his complaint of racial discrimination against his employers and two managers.

He was awarded 3,750 for injury to feelings and damage to health against the employers, but there was no award of aggravated damages and no award against the individual managers, since their actions were due to incompetence and lack of equal opportunities training, rather than malice.

The employee appealed, but the EAT dismissed his appeal.Although compensation for racial discrimination can in some cases include an element of aggravated damages, there was no evidence to suggest that the employee's sense of injury had been justifiably heightened by any high-handed, malicious, insulting or oppressive conduct by the employers.

It might have been appropriate, and a visible indication of the tribunal's disapproval of the managers' conduct, for the tribunal to have made an award against all the respondents jointly and severally and leaving them to apportion contributions between them.

Given that the compensation award had already been paid in full by the employers, it was unnecessary to revise it on appeal.

But the EAT's views on this point should be noted by those advising managers or other employees accused of discrimination.

The EAT also declined to award higher compensation.

Consistency in awards for injured feelings is desirable, but the EAT thought it more important for a tribunal, relying on its experience and good sense, to pay regard to the injustice in the case before it.

In any event, the award was not clearly erroneous and, 'in considering a subject as nebulous as injury caused to feelings by racial discrimination, a matter so personal to the complainant affected, so potentially variable from one complainant to another and so dependent on surrounding circumstances', the tribunal had the vital advantage of seeing the complainant giving evidence.

Agency workers and discriminationEltek (UK) Ltd v Thomson and another (2000) ICR 689The applicant's services were supplied to a company by an employment agency.

When she was dismissed because of absences from work, she made a complaint against both the company and the agency, alleging unfair dismissal for a reason related to pregnancy.

At a preliminary hearing, to determine whether she was an employee, the tribunal found that she was not, but that she was a contract worker within the meaning of s9 Sex Discrimination Act 1975 and, on that basis, could proceed against the company.

The company argued that the tribunal ought not to have added a claim under s.9, but the EAT disagreed.

What had happened was merely a different formulation, albeit under a different provision, of a claim made by the applicant relating to her dismissal.

It was not related to any new factual element in the case.

The prejudice to the applicant of not being able to proceed with her claim far outweighed the prejudice to the company, which still had time to prepare to meet the case as altered.

But the EAT made it clear that its decision should not be regarded 'as any form of precedent' because of the unusual circumstances of the case.