Taylor v XLN Telecom and others EAT/0385/09

race discrimination | victimisation | awards for injury to health and injury to feelings

The Employment Appeal Tribunal (EAT) has held that employees who successfully claim discrimination are entitled to be compensated for any injury to health or injury to feelings caused by the act complained of, even if they were unaware that the act complained of was discriminatory.

Mr Taylor, who is black, was promoted to team leader at XLN Telecom (XLN), which became concerned about his performance. During grievance proceedings initiated by Mr Taylor, he complained of racially offensive conduct by one of his managers. XLN did not uphold the grievance and dismissed Mr Taylor, ostensibly for poor performance. Mr Taylor brought claims for unfair dismissal and victimisation on the ground of race, claiming compensation for injury to feelings and injury to health.

The employment tribunal upheld Mr Taylor’s claims, finding that XLN’s decision to dismiss him was influenced to a significant extent by the fact that he had brought a grievance and alleged race discrimination. However, despite plenty of evidence that Mr Taylor had suffered injury to feelings and to health (he was diagnosed as suffering from stress, anxiety and depression), the tribunal reluctantly held it was not entitled to award compensation for those injuries.

The tribunal’s reasoning was that the Court of Appeal decision in Skyrail Oceanic Ltd v Coleman [1981] IRLR 398 CA meant that compensation for injury to feelings could only be awarded when the injury arose from a claimant’s knowledge that the act complained of was discriminatory. In the present case, Mr Taylor failed to provide any evidence that his feelings were injured because he knew that his dismissal was discriminatory. Instead, Mr Taylor asserted that what had “really hurt him” was XLN’s failure to comply with the (now repealed) statutory disciplinary and grievance procedures. Mr Taylor appealed the tribunal’s decision on this point to the EAT.

The EAT upheld Mr Taylor’s appeal and overturned the tribunal decision regarding awards for injury to feelings and injury to health. Aside from the decision in Skyrail, the EAT felt the tribunal’s approach was wrong in principle: Mr Taylor was entitled to be compensated for the wrongful act, which was dismissal, and that was sufficient. Turning to Skyrail, the EAT noted that it only concerned an injury to feelings award, and not injury to health, something that the tribunal had apparently overlooked. But the EAT also held that the tribunal had misunderstood Skyrail as it applied to awards for injury to feelings, which did not set down the principle that the tribunal thought it had. It would be artificial and arbitrary to withhold compensation for injury just because a claimant was unaware that the wrongful act was discriminatory, and would involve tribunals in “some very unsatisfactory enquiries” as to what “knowledge” meant in this context. The EAT therefore remitted the case to the tribunal to determine the issue of compensation.

Case transcript of Taylor v XLN Telecom and others (Microsoft Word format, 71K) (on the EAT website)

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