Previous Article Next Article Tribunalsare coming down heavily on employers who fail to follow procedure and actunreasonably in disputes by making hefty awards. Through a series of fictionalbut familiar tales, Pauline Matthews analyses recent developments Mannerof dismissalAnnaworks for a stockbrokers. She is sacked for an alleged expenses fiddle but nodisciplinary procedure is followed. When she is sacked Anna is ordered off thepremises after being accused of theft and fraud in front of all her colleagues.She is very distressed by this and finds it impossible to get a job afterwards.PMcomments It may now be possible to claim for damages for the manner inwhich the dismissal was carried out if it was particularly harsh. In Johnson vUniysis, 2001, HL, the applicant had been dismissed summarily without adisciplinary procedure and suffered psychiatric damage. He sought to claimdamages in the county court for breach of the implied term of trust andconfidence. He relied on Malik v BCCI (stigma damages case) as authority forclaiming damages for injured feelings arising from the dismissal.Nevertheless,the House of Lords decided Johnston could not proceed with his claim because ofthe existence of the statutory scheme of unfair dismissal. It drew the conclusionthat it was intended compensation should only be awarded through the statutoryscheme and not through a breach of contract action. It further stated it wouldbe difficult to claim damages in any event in these situations because theapplicant would have to show that his psychological damage arose from themanner of dismissal rather than the actual fact of dismissal.Butthe Law Lords said such a claim could not be ruled out in relation toconstructive dismissal because the right to claim breach of contract waspreserved alongside the right to claim statutory unfair dismissal.Therefore,to avoid a situation where a complainant of express dismissal was in a worseposition than a complainant of constructive dismissal, “in appropriatecases” tribunals should award “compensation for distress,humiliation, damage to reputation in the community or to family life”.They said limiting loss in unfair dismissal claims to financial loss only wastoo narrow a construction. Anna could therefore have a claim for damages forinjury to feelings in relation to the way she was dismissed, if she can showshe has suffered serious psychiatric damage, such as clinical depression, as aresult. PsychiatricinjuryKayis sexually harassed by her boss who will not take no for an answer. Heconstantly asks her out, buys her chocolates and flowers. It is well known thathe writes her poetry. She complains to personnel who tell her to “get alife”. Subsequently her boss arranges for her to accompany him on abusiness trip. When they arrive it turns out he has booked a double room forboth of them. She leaves immediately. She is traumatised by herexperience,suffering severe depression and she does not return to work butissues tribunal proceedings claiming sex discrimination, constructive unfairdismissal and psychiatric injury in respect of the discrimination. The employersays her depressive illness is due to a pre-existing condition. PMcomments An applicant with a sex discrimination claim resulting inpsychiatric injury can include such a claim when issuing proceedings for thediscrimination in the employment tribunal (following Sheriff v Klyne Tugs, CA1999). Note that such a claim cannot be brought after the resolution of thetribunal proceedings. Kay would need to show that her psychiatric illness wascaused by an unlawful discriminatory act. Whileaverage awards appear to be around £5,000, they could be much higher. In arecent sexual harassment case against the Prison Service, Mrs Salmon recovered£15,000 for her psychiatric injuries plus £20,000 for injuries for feelings and£45,000 for loss of earnings – though in that case it was pointed out that thetribunal must ensure any award for injury to feelings does not reward theapplicant again for matters already dealt with in respect of psychiatricinjury. Thefact that Kay has suffered from a psychiatric disorder in the past could leadto a reduction in damages as with Mrs Salmon who was given a 25 per centreduction. The important point is that the tribunal can still make an award ifan appli- cant can show that the particular injury resulted from the unlawfultreatment. However,an employment tribunal recently awarded £12,000 for injury to feelings whichwere heightened by the sexual abuse that the applicant had experienced as achild. In A v B the tribunal stated that “the respondent must take theapplicant as he finds her and the possibility that a more robust individual –at least one who had not suffered abuse in the past – would not have beenaffected as much as she has was irrelevant”. Kaymight also be awarded aggravated damages because of the cavalier way thepersonnel department dealt with her earlier complaints. Aggravated damages canbe awarded in addition to injury to feelings where there is conduct likely toadd to the injury. This was the case in Alexander v Home Office, CA, 1988, where the employer was described as havingbehaved in a high-handed, malicious, insulting and oppressive manner. She mayalso consider a Johnson v Unisys-type claim in respect of the manner of herconstructive dismissal. AggravateddamagesTrevorhas made a number of allegations of race discrimination against his employer, abuilding contractor. After three unsuccessful tribunals his employer is fed upwith him and decides to sack him. He is accused of fiddling his expenses claimby £20 for drinks at Christmas and dismissed with no disciplinary procedure.Trevor claims race discrimination and victimisation. He says that everyoneclaimed the £20 and at the tribunal it emerges that even the managing directorclaimed it.Thepress reports the case widely under the headline “Days of whine are overfor Trevor”. At tribunal the employer attacks the applicant’s credibilityby referring to a conviction 10 years ago, arguing he is a dishonest andunreliable witness. PMcomments In the case of Tchoula v ICTS, EAT, 2000, a similar situationoccurred and the tribunal awarded Mr Tchoula £22,000 for injury to feelings and£5,000 for aggravated damages. On appeal this was reduced to £7,500 for injuryto feelings and £2,500 for aggravated damages. The EAT said this was a case atthe lower end of the scale of injury to feelings, implying £7,500 was a fairaward for a case at that end of the spectrum. Thetribunal compared Tchoula’s case to that of Chan v The London Borough ofHackney, ET, 1996, where Mr Chan had to endure months of pressure andhumiliation and received a much larger award of £30,000. A high award could bemade for injury to feelings in Trevor’s case in the light of Virdi v CPM, ET,2000, where, because of the national publicity surrounding the case theclaimant’s reputation was severely damaged. The tribunal therefore awarded£100,000 for injury to feelings. Itis open to Trevor to argue he should receive a minimum of £7,500 in respect ofinjuries to feelings for victimisation or discrimination, although it isarguable the decision in Tchoula applies in cases where only a limiteddetriment could be shown. Inaddition, as we have already seen, the court can award aggravated damages wherethe respondent’s behaviour is high handed, oppressive and so on. InTchoula because the charges wereengineered by the employer he received aggravated damages. However, in thiscase an additional award for aggravated damages may also be made because of theemployer’s attempts to undermine Trevor’s good character. InVirdi an award of £25,000 was made for aggravated damages because therespondent had behaved high-handedly and refused to apologise. It is important,therefore, to think carefully in advance before using this type of informationand only to use information to discredit the applicant where strictly relevantto the issues in question. Where an apology is appropriate – make it. Usually aform of words can be devised which preserves everyone’s pride. nPaulineMatthews is an employment associate at DLAKeypoints–Employers should follow disciplinary procedures carefully, as damages for themanner of dismissal may now be sought in unfair dismissal cases–Employees bringing discrimination cases can claim for personal injury withtheir tribunal claim–The fact that an applicant has a pre-existing psychiatric condition does notrule out an award for personal injury, although there may be a percentagereduction if part of the injury related to the pre-existing condition–The principle that the wrongdoer “takes his victim as he finds him”could be applied–The EAT has arguably set a benchmark of £7,500 in the “lowercategory” of injury to feelings cases–Employers should be aware that the manner in which they treat discriminationcomplainants could lead to aggravated damages awards Related posts:No related photos. Serious damagesOn 1 Dec 2001 in Personnel Today Comments are closed.