EAT RACE DISCRIMINATION: Direct / Burden of proof / Other losses
PRACTICE AND PROCEDURE: Delay in ET judgment
STATUTORY DISCIPLINE and GRIEVANCE PROCEDURES: Impact on compensation
C, aged 40, dismissed from bank ostensibly for redundancy, but the dismissal held by the Employment Tribunal to have been unfair and on racial grounds – Decision announced informally in immediate aftermath of hearing but delay of eight months in promulgating formal Judgment and Reasons – Compensation subsequently awarded in the sum of andpound;2.8m. (incorporating 2% uplift under s. 31 (3) of the 2002 Act), using a 16-year multiplier taken from the Ogden tables on the basis that C would suffer career-long loss – R’s appeals against both liability and remedy decisions; C’s cross-appeal on quantum of uplift
Liability appeal dismissed –
Held:
– Delay by Tribunal not such as to invalidate decision
– Tribunal correct to apply s. 54A (burden of proof provisions) notwithstanding C’s evidence that the discrimination was on grounds of ‘colour’ rather than ‘race’ or ‘ethnic or national origins’ – Okonu v. G4S Security Services (UK) Ltd. [2008] ICR 598 not followed
– Various particular challenges to the Tribunal’s reasoning not upheld
Remedy appeal allowed – Tribunal had made a number of errors. Particular points:
– Tribunal should have considered whether C would have been made redundant on the same occasion even if Employers had not been motivated by his race – Submission that ‘the Polkey question’ does not fall to be asked in discrimination cases rejected
– Compensation should have been limited to the loss of C’s employment with R
– Claim for compensation on the basis that C would suffer a stigma by reason of having brought proceedings against R not available in law
– Observations on the use of Ogden tables
Cross-appeal dismissed – Tribunal entitled to take the size of the award into account in applying s. 31 (4) – Aptuit (Edinburgh) Ltd. v. Kennedy UKEAT/0057/06 considered.
Judges:
Underhill P
Citations:
[2008] UKEAT 0606 – 07 – 1610, UKEAT/0606/07/RN, UKEAT/0037/08/RN, UKEAT/0041/08/RN
Links:
Statutes:
Race Relations Act 1976 54, Employment Act 2002 31
Cited by:
Preferred – Milton Keynes General Hospital NHS Trust and Another v Maruziva EAT 9-Oct-2009
EAT RACE DISCRIMINATION: Direct / Burden of proof
VICTIMISATION DISCRIMINATION
PRACTICE AND PROCEDURE: Appellate jurisdiction/reasons/Burns-Barke
Numerous complaints of direct . .
Appeal from – Chagger v Abbey National Plc and Another CA 13-Nov-2009
The claimant appealed against the limitation of 2% placed on the uplift of his award of damages for having failed to comply with relevant dispute procedures. The tribunal had found exceptional reasons for reducing the uplift given the size of the . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination, Damages
Updated: 19 July 2022; Ref: scu.277154