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| || ||Neutral Citation Number:  EWCA Civ 1871|
| || ||Case No: A1/2001/2866|
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL
TRIBUNAL( MR JUSTICE WALL)
| || ||Royal Courts of Justice|
London, WC2A 2LL
| || ||20th December 2002|
B e f o r e :
LORD JUSTICE WARD
LORD JUSTICE MUMMERY
LORD JUSTICE JONATHAN PARKER
| || MS ANGELA VENTO||Appellant|
| ||- and -|
| ||THE CHIEF CONSTABLE OF WEST YORKSHIRE POLICE||Respondent|
(Transcript of the Handed Down Judgment of
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MR CHRISTOPHER JEANS QC & MS JANE WOODWARK (instructed by Hewitt & Company) for the Appellant
MR DAVID BEAN QC & MR DAVID JONES (instructed by West Yorkshire Force Solicitor's Department) for the Respondent
HTML VERSION OF JUDGMENT
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Lord Justice Mummery : This is the judgment of the Court.
- The appeal and the cross appeal raise two significant questions, which crop up with increasing frequency in the assessment of compensation for sex and race discrimination. First, what is the correct approach to compensation when unlawful discrimination results in the loss of the chance of a career? Secondly, what, in general, is the appropriate level of compensation for non-pecuniary loss, such as injury to feelings, and, in particular, how should the problem of double recovery for injury to feelings be approached, if awards of compensation for psychiatric injury and aggravated damages are also made?
- In this case the Employment Tribunal ordered the respondent Chief Constable of West Yorkshire Police (the Chief Constable) to pay a total sum of £257,844 compensation for sex discrimination to the appellant Ms Angela Vento, a former probationary officer in his force. Of that total, the sum of £165,829 was awarded for loss of future earnings, calculated on the basis that there was a 75% chance of Ms Vento working in the police force for the rest of her career. The balance of the compensation (£74,000) was awarded for non-pecuniary loss: as to £65,000, for injury to feelings (including £15,000 aggravated damages) and, as to a further £9,000, for psychiatric damage. Interest of £18,015 was also ordered.
- The Employment Appeal Tribunal upset the awards. It remitted the calculation of loss of future earnings for rehearing by a freshly constituted Employment Tribunal on the ground that there was an error of law in having proceeded on the basis that Ms Vento had a 75% chance of working in the police force for the rest of her career. As to compensation for non-pecuniary loss, the Appeal Tribunal held that the award of £65,000 for injury to feelings (including aggravated damages) was so excessive as to amount to an error of law. The Appeal Tribunal substituted a total award of £30,000 for injury to feelings, to include £5,000 aggravated damages.
- The appeal is brought by Ms Vento, with the permission of a single Lord Justice, against the order of the Employment Appeal Tribunal dated 4 December 2001, allowing the Chief Constable's appeal against the Employment Tribunal's award of compensation for future loss of earnings based on a 75% chance of her completing a full police career.
- The cross appeal by the respondent Chief Constable is against the Appeal Tribunal's failure to substitute, as compensation for injury to feelings, a significantly lower figure than £30,000. Ms Vento is content to accept the sum substituted by the Appeal Tribunal, but the Chief Constable contends that the award of compensation under that head is still manifestly excessive, having regard to (a) the undisturbed award of £9,000 for psychiatric injury, bringing the total substituted sum for non-pecuniary loss to £39,000; (b) the level of awards for injury to feelings in other cases of discrimination; and (c) the relevant guidelines laid down by the courts and compiled for the Judicial Studies Board for the assessment of general damages recoverable in personal injury cases (6th Edition, 2002).
- The cross appeal also raises a question under the Employment Tribunals Act 1996 on the role of this Court on an appeal from a decision of the Employment Appeal Tribunal re-assessing compensation.
- Ms Vento was born on 15 February 1967. She had a long held ambition to join the police force, but she was unable to do so before the height requirements were relaxed in 1995. On 11 December 1995, at the age of 28, she joined the police force as a probationary constable and began training to be an ordinary police constable. At that time she was married with 3 children. Initially she had the support of her husband, though he did not expect her to succeed in combining her responsibilities as a mother with those of a trainee police officer. The couple separated in 1996 and they were divorced in 1999.
- In general, Ms Vento made good progress during her first year in her paperwork and in her work relationships. But in the first half of 1997 a series of incidents occurred when fellow police officers criticised her conduct, her personal life and her character in an unwarranted, aggressive and demoralising manner. The treatment was found to be less favourable than a hypothetical male officer would have received in the same circumstances. The tribunal inferred that the less favourable treatment was on the ground of her sex.
- At first she coped well with the situation and with the effects of the recent breakdown of her marriage. On 12 May 1997, however, she was diagnosed as clinically depressed. She was given medication. She continued working until July 1997. She then went off work sick and was absent for 3 months. Although still on medication, she returned to work in October 1997. Further incidents of discrimination occurred following which she suffered suicidal impulses. The discriminatory treatment of her contributed to her depression and affected her ability to form relationships. On 8 December 1997 she was dismissed on the ground of alleged lack of honesty and lack of performance.
- The Employment Tribunal found that Ms Vento did not have a vulnerable personality, which would increase the risk of failing to complete a full career in the police force to the retirement age of 55. It found that she would have successfully completed her probation and qualified as a police constable. It also found that she had limited career prospects. She was only likely to engage in clerical work in the future.
Proceedings in the Employment Tribunal
- On 12 February 1998 Ms Vento presented an Originating Application claiming unfair dismissal and sex discrimination. (A claim for race discrimination was also made, but it was dismissed and not pursued on appeal).
- After a 14 day hearing at Leeds the Employment Tribunal unanimously held that the Chief Constable was vicariously liable for acts of sex discrimination leading to the termination of her services as a probationary constable. The extended reasons for the decision were sent to the parties on 4 October 1999. A remedies hearing was directed.
- The Chief Constable appealed to the Employment Appeal Tribunal against the ruling on liability. The appeal was dismissed on 8 June 2000. There was no appeal to this court. That was the end of the matter on liability. No arguments have been raised on this appeal that the Chief Constable cannot be held vicariously or constructively liable for acts of sex discrimination done by one police constable against another: cf Chief Constable of Bedfordshire v. Liversidge  ICR.
- The remedies hearing in the Employment Tribunal lasted for 5 days in February 2001. The tribunal unanimously decided to award compensation to Ms Vento in the sums mentioned in paragraph 2 above. The extended reasons for the remedies decision were sent to the parties on 5 March 2001.
- On the issue of future loss of earnings the tribunal relied on Ms Vento's long held ambition to join the police force and her determination to pursue that career, even after her marriage had broken down and in the face of discrimination by colleagues. The tribunal referred to statistical evidence showing that in the recent past only a small percentage of women police officers have served in the force for over 18 years, to the introduction of family friendly working conditions in the police force and to the fact that Ms Vento was unable to have any more children. It concluded (paragraph 13)
"Drawing together the applicant's determination, changing social conditions and the desire to provide for her children, we have decided that there was a 75% chance that the applicant would have completed a full Police career had she not been dismissed."
- The tribunal applied that percentage to the calculation of her future loss of earnings saying (paragraph 40)
"…we should calculate future loss by taking the sum which the applicant would have earned had she remained in the Police, deducting from that sum the amount that she had, or should have, earned elsewhere and applying a percentage discount to the net loss to reflect the chance that the applicant might have left the Police Force in any event."
- The tribunal then considered the claim for injury to feelings. It referred to recent decisions of the Employment Appeal Tribunal and concluded (paragraph 47)
"..it is fair to say that the applicant has been put through four traumatic years by the conduct of the respondent's officers. The process started with the bullying of her in January 1997. That contributed to her clinical depression diagnosed in May of that year. It reached its zenith with the July tutorial, following which the applicant went off sick. When she returned to work in October, she faced the two case conferences at the beginning and end of November. She then had the shock and disappointment of dismissal in December, followed by these proceedings which were started in February of 1998. She had to prepare herself for a hearing in June which was aborted after three days. It took another 13 months to get the case back here for a hearing, at which the applicant's private life was subjected to minute scrutiny. The legal process attracted media attention, which exacerbated the blackening of the applicant's character. Having been vindicated by our decision, the applicant then faced the uncertainty of the appeal. Even then, she was unable to put this matter behind her, having to wait until now for our decision on remedy with the prospect of having to give evidence yet again. Finally, she lost a satisfying and congenial career. For all that, and the other matters described above by the applicant, we think that £50,000 is an appropriate sum to award."
- The tribunal considered the question of aggravated damages, finding as follows (paragraph 48)
"We find also that the respondent and his officers have throughout acted in a high-handed manner. First, they unreasonably condemned the applicant as dishonest. They raised questions about her private life, which had little or nothing to do with her conduct or capability as a police officer. They persisted in those matters throughout these proceedings until the appeal was lost. The respondent then made what we regard as a cynical offer of reinstatement principally designed to limit the financial damage to the respondent's resources. The apology from the respondent came very late in the day. There has been no apology from the five officers who are the subject of our second recommendation. The Deputy Chief Constable attended the hearing not having read our decision or that of the Employment Appeal Tribunal and, therefore, not really knowing for what he was apologising on behalf of the respondent. We characterise the respondent's attitude and that of his officers to this case as one of institutional denial, that is a refusal to see that supervising officers had throughout treated the applicant unreasonably, a refusal or inability to see that a view of the applicant's sexual morality had improperly coloured officers' judgments and a failure to ask the fundamental question as to why these things had happened. In all those circumstances, we have decided that the award for injury to feelings should be increased by a further sum of £15,000 on the account of aggravation. The aggregate is £65,000 which we note is about three times a police officer's current annual gross salary."
- Finally, the Employment Tribunal considered the question of compensation for personal injuries in the form of psychiatric damage. The tribunal concluded (paragraph 49) as follows
"Finally, whilst the medical experts acknowledge that it is sometimes difficult to disentangle injury to feeling and psychiatric damage, we think it is possible to do so in this case. We have found that the conduct of the respondent's officers contributed to the applicant's clinical depression in the Spring of 1997. Furthermore, the whole experience has left the applicant with an adjustment disorder which has lasted more than 3 years. Fortunately, the prognosis is good. In reaching our decision on this head of damage, we have looked at the Judicial Studies Board's Guidelines for the Assessment of Damages in Personal Injury Cases. In particular, we have looked to damages for both psychiatric damage generally and post-traumatic stress disorder. We find that, in either category, this case falls within the moderate range. In the case of psychiatric damage, that is defined as a situation where there would have been a marked improvement by now in the applicant's ability to cope with life and work, the effect on her relationships with family, friends and those with whom she comes into contact, the extent which treatment has been successful and future vulnerability. In the second category, the injured person will have largely recovered and any continuing effect will not be grossly disabling. The combined range is £3,000 to £10,000. Given the length of time over which the applicant has suffered from the adjustment disorder, we think this case falls within the upper end of the bracket and we assess damages under this head in the sum of £9,000. "
The Employment Appeal Tribunal
- As indicated above, the Appeal Tribunal allowed the Chief Constable's appeal against the compensation awarded for both future loss of earnings and for injured feelings.
- As to future loss of earnings the Appeal Tribunal held, in the judgment given on its behalf by Wall J-
"16...... We have no doubt at all that the Tribunal fell seriously into error in assessing the Respondent's future loss of earnings on the basis of a 75% chance of her serving in the police force to the age of her retirement. She had in fact served less than two years as probationer. The vicissitudes she had undergone during that period were by no means entirely due to the treatment she received at the hands of the Appellant. As recorded in paragraph 14 above, the respondent had suffered from a depressive illness, largely consequent upon the breakdown of her marriage; she had been off duty through illness and at times her work had not achieved an adequate standard.
17... On the statistical evidence, only 9% of women serve more than 18 years. Even taking into account the fact that the Respondent was unable to have any more children, and making full allowance for the social changes which had occurred since some of the women who were the subject of the survey had begun their police careers, we can see no proper basis upon which the Tribunal could have been justified in departing so radically from the figure of 9% in order to reach the finding that the Respondent stood a 75% chance of remaining in the Police Force until retirement. Even if the figures for men are adopted, for which it would be difficult to find a rationale, the chance does not exceed 50%.
18... We have set out the passage in the Tribunal's reasons which contains the explanation it gives for its assessment of the Respondent's chance of completing a full police career. That passage, in our judgment, does not give any adequate reason for departing from the figure of 9% and reaching 75%. Accordingly, both the size of the award and the lack of sound reasons to support it represent, in our judgment, errors of law sufficient to make it necessary for the award under paragraph (ii)(a) of the decision to be set aside. At the same time, we plainly do not have the material upon which to make the appropriate assessment, and it will be necessary for this part of the case to be remitted to a freshly constituted Tribunal for the figure under this head to be reassessed."
- As for the award in respect of injury to feelings, the Appeal Tribunal cited a number of authorities and summarised the rival submissions before concluding (paragraph 34) that the "Tribunal's assessment of £9,000 under the heading of "Personal Injury" cannot be said to be excessive or in any way to demonstrate an error of law", but that the figures for injury to feelings and aggravated damages were excessive.
"35. In our judgment, the overwhelming weight of authority cited by Mr Bean and Mr Jones demonstrates that the award made by the Tribunal for injury to feelings in the sum of £65,000 (to include £15,000 for exemplary (sic) damages) is well outside the range which any Tribunal properly directing itself to those authorities would have made. Ironically, two of the cases most important are Armitage and Tchoula both of which are cited by the Tribunal, but neither of which, in our judgment, is applied by it. Since we take the view that the award of £65,000 is plainly wrong, and as we have the material upon which we can form our own assessment, this is what we propose to do.
36. The case most in point seems to us to be Armitage. There, the applicant received £21,000 and £7,500 for aggravated damages. For the reasons which they give, we do not think it unreasonable for the Tribunal in the instant case to have made an award of aggravated damages although we think the figure excessive. Given that Armitage was decided in 1997, and given also that we think the figure for exemplary damages manifestly excessive, we have come to the conclusion that the proper awards here are £25,000 for injury to feelings, £5,000 for agravated damages, and £9,000 as found by the Tribunal for personal injuries. This is, approximately, a little over half the global award made by the Tribunal, and in our judgment is in line with the authorities on these three heads."
The Role of the Court of Appeal
- Mr Christopher Jeans QC, on behalf of Ms Vento, made submissions on the limited scope of the Court of Appeal power to review the decision of the Employment Appeal Tribunal substituting an award of £30,000 for the Employment Tribunal's award of £65,000 for injury to feelings, including aggravated damages. He contended that the Court of Appeal was not entitled to interfere with the substituted award of £30,000, unless the Chief Constable could show that that award was perverse. The fact that the Appeal Tribunal was itself interfering with the decision of the Employment Tribunal did not affect the position.
- Mr Jeans submitted that the issue in this court was whether the Appeal Tribunal had erred in law in fixing that award at £30,000, not whether the Employment Tribunal had erred in law in its award of £65,000. An error of law by the Appeal Tribunal on its assessment of compensation was only established by showing that its conclusion was perverse. Mr Jeans reminded the court that the Appeal Tribunal is the specialist appellate tribunal empowered to exercise the powers of the Employment Tribunal and, to the extent that it does so, its latitude of judgment must be respected on a further appeal. On that approach he developed his contention, dealt with in more detail below, that the award of £30,000 by the Appeal Tribunal was well within permissible limits and that it was not open to the Court of Appeal to interfere with it.
- We disagree with this analysis of the role of the Court of Appeal. The true position, on authority and in principle, is that the Court of Appeal exercises a second appellate jurisdiction in respect of decisions of the Employment Tribunal. It has been settled by decisions binding on this court that the question for the Court of Appeal is whether there is an error of law in the decision of, or in the proceedings before, the Employment Tribunal. As Sir John Donaldson MR said in Hennessy –v- Craigmyle & Co Ltd  ICR 461 at 470
"It is too often forgotten that, in the context of appeals from the Employment Appeal Tribunal, the Court of Appeal is a second tier of the appellate court... second tier appellate courts are primarily concerned with the correctness of the trial court's decision."
See also Campion –v- Hanworthy Engineering Ltd  ICR 966 and Walls Meat Co Ltd –v- Selby  ICR 601. This position stems from the relevant statutory provisions governing appeals from the Employment Tribunal.
- Section 21 of the Employment Tribunals Act 1996 defines the jurisdiction of the Appeal Tribunal. It provides
"(1) An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an Employment Tribunal by virtue of
(b) the Sex Discrimination Act 1975
(f) the Employment Rights Act 1996."
- Section 35 of the 1996 Act defines the powers of the Appeal Tribunal on such an appeal. It provides –
"(1) For the purpose of disposing of an appeal, the Appeal Tribunal may –
(a) exercise any of the powers of the body or officer from whom the appeal was brought, or
(b) remit the case to that body or officer.
(2) Any decision or award of the Appeal Tribunal on an appeal has the same effect, and may be enforced in the same manner, as a decision or award of the body or officer from whom the appeal was brought."
- Section 37 of the 1996 Act deals with appeals from the Appeal Tribunal. It provides –
"(1) Subject to subsection (3) [which is not material], an appeal on any question of law lies from any decision or order of the Appeal Tribunal to the relevant appeal court with the leave of the Appeal Tribunal or the relevant appeal court.
(2) In subsection (1) the " relevant appeal court " means
(a) in the case of proceedings in England and Wales, the Court of Appeal..."
- Reference was also made by Mr Jeans to the Civil Procedure Rules Part 52, in which it is provided that –
(1) In relation to an appeal the appeal court has all the powers of the lower court."
The "lower court" is defined in Part 52.1(3)(c) as meaning
"the court, tribunal or other person or body from whose decision the appeal is brought..."
Part 52.11 provides that
"Every appeal will be limited to a review of the decision of the lower court unless
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing."
- In our judgment, on the correct construction of the statutory provisions and the rules, the position remains as stated in the judgment of Sir John Donaldson MR cited in paragraph 25 above. The position has not been changed by the Civil Procedure Rules.
- It is true that the appeal to this court is from a decision or order of the Employment Appeal Tribunal, allowing or dismissing an appeal to it from the Employment Tribunal. There is no appeal route from the Employment Tribunal directly to the Court of Appeal by-passing the Appeal Tribunal. In substance, however, the question of law on which an appeal lies is one arising from the decision of or in the proceedings before the Employment Tribunal. The appeal to this court involves a determination of the very same questions as were before the Appeal Tribunal i.e. is there an error of law arising in the decision of, or in the proceedings before, the Employment Tribunal? And, if so, what should be done about it? As in the case of appeals from the ordinary courts, the focus of the appellate body, whether at the first, second or any remoter tier of appeal, is on the determination of the proceedings in the trial court or tribunal. Attention and respect will be paid by the Court of Appeal to the conclusions of the Appeal Tribunal in the exercise of its specialist appellate function. But we are unable to accept the contention that the intervening decision of the Appeal Tribunal has the effect of preventing this court (or any higher court) from taking the decision of the Employment Tribunal as the relevant point for deciding whether there is an error of law and, if there is, how the appeal court should exercise its powers to rectify the error.
Compensation for future loss of earnings: the general approach
- It was common ground that the correct approach to compensation for future loss of earnings was that described by Morison J in his judgment on behalf of the Employment Appeal Tribunal in Ministry of Defence –v- Cannock  ICR 918 at 951. The question is: what were the chances, if Ms Vento had not been discriminated against and dismissed, of her remaining in the police force until the age of retirement at 55?
- As Morison J pointed out, this hypothetical question requires careful thought before it is answered. It is a difficult area of the law. It is not like an issue of primary fact, as when a court has to decide which of two differing recollections of past events is the more reliable. The question requires a forecast to be made about the course of future events. It has to be answered on the basis of the best assessment that can be made on the relevant material available to the court. That includes statistical material, such as that produced to the tribunal showing the percentage of women who have in the past continued to serve in the police force until the age of retirement.
Submissions of the C hief Constable
- Mr David Bean QC, on behalf of the Chief Constable, relied strongly on the statement of Morison J at page 952E of Cannock that " statistics are going to prove a good starting point" in relation to the question of the length of service, which the applicant has hypothetically lost. Such chances " must be assessed sensibly having regard to what happens in real life." Looking into future length of service is not a question of "finding", as a fact, what the length of service would be and then making a discount for contingencies: it is more a question of looking into an uncertain and distant future in order to make an informed prediction about it by taking account of what is known.
- On this approach it was contended that the Employment Tribunal's "finding" that Ms Vento had a 75% chance of working in the police force for the rest of her career was irrational and unsustainable. It defied not only common sense but also the solid historical evidence relating to wastage from the police force of any comparator group, either of men or women. The evidence before the tribunal was that, of those who left the police force within the decade 1989 to 1999, only 49.7% of men had served for more than 18 years and only 9% of women police officers had served over 18 years. These statistics, being the most recent available at the date of the remedies hearing, were an important piece of evidential material in the evaluation of the future prospects of Ms Vento's career.
- Mr Bean criticised the conclusion of the Employment Tribunal that Ms Vento would have succeeded in continuing her career in the Police well beyond the majority of others serving in the Force. In so holding it should have set out in clear and cogent terms the evidence relied upon for that view. It had failed to do so. It had made no express reference to the fact that Ms Vento had only a very limited period of service on which to make predictions of future service. She had served less than 2 years as a probationer. She had been off sick during part of that period. She had suffered from depressive illness, principally caused by her marital breakdown. Further, for parts of the probationary period, her work had not achieved an adequate standard. The Employment Tribunal failed to identify and to take account of these vicissitudes in Ms Vento's short service, which were not entirely due to the discriminatory treatment she had received.
- There was only a passing reference to other factors causing the Employment Tribunal to depart from the solid statistical evidence. Factors, such as the introduction of family friendly working conditions and Ms Vento's inability to have any more children, were accepted to be relevant considerations affecting the projection of Ms Vento's career prospects, but those factors alone did not justify such a wholesale and radical departure from the statistics. This was a case, Mr Bean submitted, in which the approach of the Employment Tribunal demonstrated a substantial failure to take into account matters which should have been taken into account: it involved a rejection of the norm, without adequate and specific explanation. In these circumstances the Appeal Tribunal was right to overturn the decision of the Employment Tribunal and to direct a rehearing by a freshly constituted tribunal.
Conclusion on future loss of earnings
- The decision of the Employment Tribunal on this point ought only to be overturned if it is shown to be a perverse conclusion, that is a decision which no reasonable tribunal, properly directing itself on the law and on the materials before it, could reasonably have reached. An appellate tribunal or court is not entitled to interfere with such a conclusion simply on the basis that it would itself have reached a different conclusion on the same materials.
- It has to be accepted that the figure of a 75% chance of a full career is certainly on the high side. We doubt whether we would have estimated Ms Vento's chances as high as that had we been sitting in the Employment Tribunal. It was, however, an option reasonably open to the Employment Tribunal. The decision on that point ought not to have been interfered with by the Appeal Tribunal. We would allow Ms Vento's appeal.
- We accept the basic submission made by Mr Christopher Jeans QC that the Employment Tribunal's conclusion on this point was plainly and properly influenced by the impression gained by it in seeing her give evidence at the lengthy liability and remedies hearings. It concluded that she had a lifelong ambition to become a police officer. Her determination to achieve her ambition was demonstrated by her persistence with her probation in the face of the appalling discriminatory treatment described in the extended reasons. The Employment Tribunal was entitled to place considerable weight on the view it had formed of Ms Vento's determination to pursue her career and of the way she had dealt with the problems confronting her in her probationary period, as well as having to cope with the break-up of her marriage and the demands on a single parent with three children. These matters weighed heavily with the tribunal in estimating her chances of achieving a full period of service down to retirement.
- The statistical evidence produced by the police on the respective percentages of men and women leaving the Service between 1989 and 1999 before completing anything like a full career in it was relevant to the assessment of Ms Vento's chances of a full career. It could not, of course, be determinative of Ms Vento's future prospects in the police force and Mr Bean did not, in his moderate submissions, contend that it was. The real question is whether much more weight should have been given by the tribunal to the statistics and whether the tribunal was justified in departing from the general indications of past experience of average length of service demonstrated by the statistics.
- In our judgment, the Employment Tribunal was entitled to approach the statistics with circumspection. Quite apart from its findings on the special factors of Ms Vento's career ambition, dedication and determination in the face of adversity and its predictions of her future career based on those factors, the tribunal had relevant evidence that the future situation in the Police Force would be different from the social and working conditions prevailing in the decade covered by the statistics. Recent and continuing social changes affecting women in society and in the workplace are reflected in the adjustments now being made to working conditions in the Police Force. There was evidence about the anticipated need to retain officers and to maintain resource levels. The introduction of "family friendly policies" is aimed at retaining more women officers in the future. Ms Vento's inability to have any more children was important in deciding what weight to place on the statistics in her case, as the high incidence of women officers not completing police careers was attributable to leaving in order to have children.
- As Mr Jeans pointed out, the Appeal Tribunal regarded the statistics as a governing consideration from which departure had to be strictly justified. That was not the right approach when there were a number of special factors affecting Ms Vento's situation, which considerably lessened the impact of the statistics on her particular case.
- In our judgment, the Employment Tribunal did not apply any wrong principle of law or reach a perverse decision in the difficult and imprecise exercise of assessing the relative future chances. There was material on which its evaluation could be justified. It explained its conclusion sufficiently to comply with its duty to give sufficient reasons for its decision. The parties were able to tell in broad terms why they had won or lost on that issue. It is difficult to see what further reasons or explanation could reasonably be expected of the tribunal on a point such as this. It referred to the statistics on which the police relied. It also referred to the factors casting doubt on the applicability of past statistics to the future prospects of this particular police officer.
Compensation for Injury to Feelings: the Law
- There was no serious dispute between Mr Jeans and Mr Bean on the existing legal principles governing compensation for injury to feelings. The differences between them arise on the application of the principles to the particular facts.
- This is the first time for many years that the Court of Appeal has had the opportunity to consider the appropriate level of compensation for injury to feelings in discrimination cases. Some decisions in the Employment Tribunal and in the Appeal Tribunal have resulted in awards of substantial sums for injury to feelings, sometimes supplemented by compensation for psychiatric damage and aggravated damages. Cases were cited to the court in which Employment Tribunals had, as in this case, awarded compensation for injury to feelings (plus aggravated damages) larger than the damages separately awarded for psychiatric injury, and totalling well in excess of £20,000. The Court was shown the decision of an Employment Tribunal in a race discrimination case awarding the sum of £100,000 for injury to feelings, plus aggravated damages of £25,000: Virdi v. Commissioner of Police of the Metropolis (8 December 2000, London Central ET, Case No: 2202774/98). (This pales into insignificance in comparison with the reported award in 1994 by a Californian jury of $7.1m to a legal secretary for sexual harassment, and even with the subsequent halving of that sum on appeal).
- Compensation of the magnitude of £125,000 for non-pecuniary damage creates concern as to whether some recent tribunal awards in discrimination cases are in line with general levels of compensation recovered in other cases of non-pecuniary loss, such as general damages for personal injuries, malicious prosecution and defamation. In the interests of justice (social and individual), and of predictability of outcome and consistency of treatment of like cases (an important ingredient of justice) this Court should indicate to Employment Tribunals and practitioners general guidance on the proper level of award for injury to feelings and other forms of non-pecuniary damage. (See paragraphs 65 – 68 below).
- Under Section 63 of the Sex Discrimination Act 1975 a complaint by any person (the complainant) that another person (the respondent) has committed an act of discrimination against a complainant, which is unlawful by virtue of Part II [Discrimination in the employment field] may be presented to an employment tribunal. Section 65 deals with the remedies on a complaint under Section 63. It provides that
"(1) Where an employment tribunal finds that a complaint presented to it under section 63 is well founded the tribunal shall make such of the following as it considers just and equitable –
(b) an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a County Court…to pay to the complainant if the complaint had fallen to be dealt with under section 66.."
- Section 66 of the 1975 Act provides that claims under that section
"(1).....may be made the subject of civil proceedings in like manner as any other claim in tort.....
(4) For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head."
- It is self evident that the assessment of compensation for an injury or loss, which is neither physical nor financial, presents special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedent. Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise. As Dickson J said in Andrews v. Grand & Toy Alberta Ltd (1978) 83 DLR (3d) 452 at 475-476, ( cited by this Court in Heil v. Rankin  QB 272 at 292, paragraph 16) there is no medium of exchange or market for non-pecuniary losses and their monetary evaluation
"… is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution."
- Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury. In these circumstances an appellate body is not be entitled to interfere with the assessment of the Employment Tribunal simply because it would have awarded more or less than the tribunal has done. It has to be established that the tribunal has acted on a wrong principle of law or has misapprehended the facts or made a wholly erroneous estimate of the loss suffered. Striking the right balance between awarding too much and too little is obviously not easy.
- As Smith J noted in Prison Service –v- Johnson  ICR 275, there were, in the first 20 years of the legislation against discrimination, very few reported cases on awards of damages for injury to feelings and they are now out of date. In Alexander –v- Home Office  ICR 685, the Court of Appeal increased an award for injury to feelings awarded for race discrimination by prison officers from £50 to £500. In the same year in Northern Regional Health Authority –v- Noone  ICR 813 the Industrial Tribunal (as it was then called) awarded £5,000 for injury to feelings in a case of a single act of race discrimination against a black woman doctor, who was not appointed to a position for which she applied. On appeal to the Employment Appeal Tribunal that award was reduced to £1,000. The Court of Appeal considered that £3,000 was the appropriate award. It should be noted that at that time the maximum amount of compensation that could be awarded for race discrimination was £7,500. That limit was later increased and ultimately removed altogether. So there is now no ceiling on the total amount recoverable for acts of sex and race discrimination.
- In HM Prison Service –v- Johnson Smith J reviewed the authorities on compensation for non-pecuniary loss and made a valuable summary of the general principles gathered from them. We would gratefully adopt that summary. Employment Tribunals should have it in mind when carrying out this challenging exercise. In her judgment on behalf of the Appeal Tribunal Smith J said at p. 283B
"(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham MR, be seen as the way to "untaxed riches". (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think that this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. (iv) In exercising that discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. (v) Finally, tribunals should bear in mind Sir Thomas Bingham's reference for the need for public respect for the level of awards made. "
- The Appeal Tribunal in that case was concerned with a serious case of race discrimination suffered by a black auxiliary prison officer, who was the victim of a campaign of racial harassment and humiliation over a period of 18 months, involving elements of pure malice and victimisation on the part of his persecutors. In August 1995 the Employment Tribunal awarded him £21,000 for injury to feelings and £7,500 for aggravated damages. That was the largest reported award at that time. The appeal by the Prison Service against those awards was dismissed on the ground that it could not be said that the Employment Tribunal had erred in law. The Appeal Tribunal concluded that, although the award of £21,000 award for injury to feelings was on the high side, it was a serious case of discrimination and the level of the award was not obviously out of line with the general range of personal injury awards or with sums awarded for injury to reputation.
- The Appeal Tribunal also upheld the award of aggravated damages holding that such damages were available in discrimination cases having regard to the manner in which the acts of discrimination were committed and other aspects of the conduct of the discriminator. The Appeal Tribunal held that the award of £7,500 was not outside the bracket of reasonable awards. It was a very serious case, in which the treatment of the applicant had been appalling affecting both his work and home life, but not, apparently, inflicting any injury to health. The discrimination had been aggravated by the failure of the Prison Service to investigate his complaints.
- The general approach laid down in Prison Service –v- Johnson has been followed in three recent cases in the Appeal Tribunal, which provide useful illustrations of the range of awards of compensation to damages for feelings.
- In Gbaja-Bianila –v- DHL International (UK)Ltd  ICR 730 (Lindsay J presiding), the Appeal Tribunal dismissed an appeal by the applicant, who contended that the award of £3,750 for injury to feelings was too low. No award for aggravated damages was made in that case. There was no evidence of high handed, malicious, insulting or oppressive conduct in respect of the acts of discrimination. The Appeal Tribunal refused to interfere with the award, as it had not been established that the Employment Tribunal had applied any wrong legal principle to the assessment or arrived at a figure on which no tribunal, properly directing itself, could have arrived at. Relying on their experience and good sense the Employment Tribunal had reached a figure, which could not be said to be wholly erroneous. Reference to awards in other cases was only of value in giving a broad indication of the level of award.
- In ICTS (UK) Ltd –v- Tchoula  IRLR 643 the Appeal Tribunal (HHJ Peter Clark presiding) allowed an appeal against an award of £27,000 in a race discrimination case brought by a security officer. The Employment Tribunal awarded £22,000 for injury to feelings and £5,000 for aggravated damages. The Appeal Tribunal considered that the total sum awarded was so excessive as to be in error of law. It was a relatively serious case, but fell within the lower category of awards. It was not a case of a campaign of discrimination. Having referred to the Guidelines of the Judicial Studies Board, the Appeal Tribunal reduced the sum awarded to an overall sum of £10,000.
- The most recent reported case is the decision of the Appeal Tribunal (Mr Recorder Underhill QC presiding) in HM Prison Service –v- Salmon  IRLR 425. That was a serious case of sex discrimination brought by a woman police officer complaining of humiliating and degrading conduct, which was so serious that she had suffered psychiatric harm for which she received an award of £11,250. In addition, the sum of £20,000 for injury to feelings, including £5,000 aggravated damages, was awarded. The Appeal Tribunal dismissed the appeal of the Prison Service against those awards, holding that they were not so excessive as to constitute an error of law by the Employment Tribunal. While accepting that Employment Tribunals must be aware of the danger of allowing double recovery for overlapping areas of loss, the Appeal Tribunal did not consider that in that case there had been any vitiating double counting.
- Being fully aware that awards in other cases only assist in a very general way, Mr Bean was brief in his citations of decisions in the personal injury field indicating that the awards by the Employment Tribunal and the Appeal Tribunal in this case were excessive. He cited decisions of this Court and of the Criminal Injuries Compensation Board in which much lower sums have been awarded in recent years by way of general damages for post-traumatic stress disorder, for psychological harm involving serious personality change and damage and dysfunctional relationships, feelings of low self-esteem, eating disorders, panic attacks, personal and social unhappiness, anger and distress in serious cases of, for example, persistent sex and physical abuse of children by parents, step-parents and other carers. The level of awards ranged from about £15,000 at the lower end to £31,000 in cases where psychiatric damage had also been suffered. The cases cited were drawn from recent headnotes in Kemp & Kemp on Damages. Mr Bean agreed that the sums mentioned in the headnotes should be given their current value in accordance with the Heil v. Rankin uplift.
- At the end of the day this Court must first ask itself whether the award by the Employment Tribunal in this case was so excessive as to constitute an error of law. That was the conclusion of the Appeal Tribunal and it is clearly right. The totality of the award for non-pecuniary loss is seriously out of line with the majority of those made and approved on appeal in reported Employment Appeal Tribunal cases. It is also seriously out of line with the guidelines compiled for the Judicial Studies Board and with the cases reported in the personal injury field where general damages have been awarded for pain, suffering, disability and loss of amenity. The total award of £74,000 for non-pecuniary loss is, for example, in excess of the JSB Guidelines for the award of general damages for moderate brain damage, involving epilepsy, for severe post-traumatic stress disorder having permanent effects and badly affecting all aspects of the life of the injured person, for loss of sight in one eye, with reduced vision in the remaining eye, and for total deafness and loss of speech. No reasonable person would think that that excess was a sensible result. The patent extravagance of the global sum is unjustifiable as an award of compensation. It is probably explicable by the understandable strength of feeling in the tribunal and as an expression of its condemnation of, and punishment for, the discriminatory treatment of Ms Vento.
- The next question is what is the appropriate amount to award under this head? For the reasons already stated we reject Mr Jeans's submission that this court is inhibited from reducing the sum below that substituted by the Appeal Tribunal. It is not a question of whether the Appeal Tribunal assessed a reasonable sum in the exercise of a discretion, with which this Court ought not to interfere. The question for this Court is what is the reasonable, fair and just sum to put in place of the award made in error of law by the Employment Tribunal. Neither side has contended that this matter should be remitted to the Employment Tribunal.
- In our judgment, taking account of the level of awards undisturbed on recent appeals to the Appeal Tribunal and of the JSB Guidelines, the fair, reasonable and just award in this case for non-pecuniary loss is a total of £32,000, made up as to £18,000 for injury to feelings, £5,000 aggravated damages and £9,000 for psychiatric damage, which took the form of clinical depression and adjustment disorder lasting for 3 years (and against which there was no appeal). We also bear in mind that there was no finding by the Employment Tribunal that the injury to Ms Vento's feelings would continue after the psychiatric disorder had passed. During the period of psychiatric disorder there must have been a significant degree of overlap with the injury to her feelings.
- It should be understood that the reduction in the amount of compensation is made solely to bring the global award more into line with conventional wisdom on levels of compensation for non-pecuniary loss generally. The reduction does not mean that this Court takes a less serious view than the Employment Tribunal did of the persistent unlawful discrimination suffered by Ms Vento at the hands of her colleagues in the Police Service, which is expected to set an example of abiding by the law, including the law governing all forms of discrimination.
- Employment Tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury.
i) 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. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.
ii) 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.
iii) 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. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.
- There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.
- The decision whether or not to award aggravated damages and, if so, in what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled.
- Common sense requires that regard should also be had to the overall magnitude of the sum total of the awards of compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage. In particular, double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage. The extent of overlap will depend on the facts of each particular case.
- For these reasons, we allow the appeal and the cross appeal against the decision of the Employment Appeal Tribunal, restore the figure for financial loss, substitute for the decision of the Employment Tribunal the sum of £18,000 for injury to feelings, plus £5,000 for aggravated damages, and leave the damages for psychiatric injury at £9,000.
Order: Appeal allowed with costs; cross-appeal allowed with no order as to costs; rest of order made in terms of agreed draft.
(Order does not form part of the approved judgment)
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