E-NEWS: March 5 2004

In this edition we report on:

* Compensation in Race Discrimination complaints
* Sex Discrimination
* Illegal contracts and rights at law

Compensation in Race Discrimination complaints

Court of Appeal rules that there is no need for an Applicant in Race Discrimination case to show Psychiatric Injury

In the recent Court of Appeal case of Laing Ltd V Essa 2004, it was held that there was no need for the applicant in this case to show that psychiatric injury was reasonably foreseeable in order to recover compensation for it.

The Court went on to say that compensation should cover all harm which arises naturally and directly from the act of discrimination.

This will potentially increase the liabilities faced by errant employees if psychiatric injury, beyond mere injury to feelings, follows an act of unlawful discrimination.

In light of last December's introduction of legislation outlawing discrimination on the grounds of sexual orientation, religion and other beliefs, this case serves as a reminder to businesses of the need to revisit their existing policies as a means of avoiding liability in respect of unlawful discrimination within the workplace.

Injury to feelings and aggravated damages awards

In the case of British Telecommunications plc v Reid 2004 the Court of Appeal had to consider whether a tribunal had taken the correct factors into account when awarding compensation of £6,000 in respect of injury to feelings and £2,000 for aggravated damages.

Mr Reid, an Afro-Caribbean, was a BT employee stationed in St Albans. Following a heated argument between him and two of his colleagues one of his colleagues told him that he knew people with baseball bats and that he "will get someone to put him back in his cage". Mr Reid was so distressed he left work before the end of his shift and was disciplined for abandoning his duties

Mr Reid raised a grievance with his employers about his colleague's behaviour that took 14 months to complete during which the alleged perpetrator was promoted. The Employment Tribunal in considering Mr Reid's complaint concluded that the comment "I will get someone to put you back in your cage" amounted to an act of race discrimination for which BT was responsible. In considering an award for aggravating damages it took into account that Mr Reid had an unpleasant time following the incident and subjected to the indignity of a totally unjustified disciplinary investigation. He had also suffered from stress resulting in a considerable amount of sick leave and finally he had to wait for 14 months for his grievance to be dealt with.

BT unsuccessfully appealed against the size of the award to both the Employment Appeal Tribunal ("EAT") and the Court of Appeal.

Sex Discrimination- Training after maternity leave and breastfeeding at work

In the case of Ministry of Defence v Williams the EAT considered the position of a pregnant woman who was denied advanced RAF training and claimed that the RAF's policy on breast-feeding was discriminatory.

In 1999 Ms Williams attended a selection board for an Advanced Pre-Employment Training (APET) course, which would allow her to progress to the rank of Squadron Leader. She achieved the joint top score and was selected to undertake APET training in September 2000.

In January 2000 she discovered she was pregnant and that her due date conflicted with the course. The RAF subsequently submitted her name to attend the course in the following year's intake, but she was not selected.

The EAT in upholding the original tribunal decision that Ms Williams had suffered sex discrimination found that her pregnancy had deprived her of her place on the course in 2000 and that this was not a circumstance that would have applied to a man. The EAT further found that selecting Ms Williams for the 2001 intake would have caused the RAF no practical problems in view of her expertise and qualifications, a fact which the EAT thought was crucial to the case.

The EAT allowed the MoD's appeal in relation to the claims arising from the breastfeeding policy and remitted those claims to be heard by a fresh tribunal.

Illegal Working - effect on right to claim discrimination

In recent few years a number of cases have dealt with the problematic issue of whether employees whose contracts are illegal may be prevented from asserting their contractual and statutory employment rights.

In the case of Vakante v Addey and Stanhope School and others the EAT had to decide whether it could hear the race discrimination complaint of a failed asylum seeker who obtained employment by deception and contrary to his leave to remain in the UK.

Mr Vakante applied for the post as a trainee teacher at the Addey and Stanhope School, stating that his claim for asylum was pending but falsely declaring on his application form that he did not require a work permit.

Following his dismissal he complained that the School had been discriminated against him on racial grounds by dismissing him and by treating him less favourably than others while he was in employment. In particular he alleged that he suffered humiliation in front of pupils and other staff, less favourable terms of engagement than other staff and the dismissal itself.

The employment tribunal having heard Mr Vakante's remitted complaint held that his immigration status would prevent him from advancing his claims. The School successfully appealed that decision and the case was reheard by a fresh employment tribunal who subsequently found that Mr Vakante's illegal actions in securing employment in breach of his leave to remain would bar his race discrimination complaints. Mr Vakante appealed.

The EAT in dismissing the appeal pointed out that illegality was not irrelevant, but rather that illegality would bar a claim if that claim was inextricably linked to the illegality.

The EAT held that the tribunal had been entitled to find that illegality infected the entirety of the contract and indeed created an employment relationship which would not otherwise have been created. The contract was not entitled to exist at all and could and should have been terminated during every day that it operated.

In those circumstances all the ordinary events of such a contract would be likely to be inextricably linked with the illegal conduct consequently there could be no complaint of discrimination arising out of a discriminatory manner of operating, or terminating, that contract.

The EAT identified a possible exception to this prohibition namely in circumstances where the conduct complained of was extrinsic to the operation of the contract for example gratuitous abuse committed by a fellow employee. However, in the present case the humiliation Mr Vakante complained of were remarks allegedly made by his supervisor within the ordinary incidents of a teacher training contract and were therefore not extrinsic to the contract.

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