Sheriff v Klyne Tugs (Lowestoft) Ltd.

Race Discrimination - Compensation for personal injury in tribunals

In deciding that an Employment Tribunal settlement prevented an employee bringing a claim before the county court for personal injury, the Court of Appeal hold that employment tribunals have jurisdiction to award compensation for personal injury, both physical and psychiatric, caused by unlawful discrimination on grounds of race. Unlike actions based on negligence, the employee does not have to prove that the employer could reasonably have foreseen that he or she would have been injured; it is enough that the discrimination caused the injury

The Race Relations Act, along with the Sex Discrimination Act and Disability Discrimination Act, all provide that a tribunal may award damages and that the damages should be such as would be awarded for tort in the county court. It is further specifically provided, for the avoidance of doubt, that the damages may include damages for injury to feelings. In the case reported below, the Court of Appeal express some opinion on whether the tribunal may award damages for psychiatric injury over and above any damage for injury to feelings.

In the case reported below, an employee who was subjected to racial discrimination had a nervous breakdown. The question for the Court of Appeal was whether an employment tribunal had jurisdiction to award him compensation for his psychiatric illness, or whether the employee was right to have sued separately for damages for personal injury in the civil courts in an action based on negligence.

Race claim settled

S, a Muslim of Somali origin, was employed by KT Ltd as a second engineer on one of their vessels. During his employment, S alleged that he suffered racial harassment, abuse and bullying from the master of the vessel. He was made to work longer hours than his white colleagues, was made to eat meat forbidden by his religion, and was refused permission to go ashore to obtain medical treatment. In January 1995 S had a nervous breakdown. He was diagnosed as suffering from anxiety and stress and was certified as unfit for work. On presenting the medical certificate to his employers, S was promptly dismissed.

County court rejects personal injury claim

S brought a claim of racial discrimination, which was adjourned part heard. S was still off work suffering from anxiety and depression. The case was later settled. S accepted the sum of £4,000 from his employers in settlement of all claims arising from his employers in settlement of all claims arising from his employment and its termination in respect of which an employment tribunal had jurisdiction. S then brought a personal injury claim in the county court. The particulars presented to the tribunal, save for the medical evidence, which stated that S was suffering from post traumatic stress disorder. The county court struck out S's claim as an abuse of process on the grounds that S's personal injury claim was one in respect of which the employment tribunal had jurisdiction and that his claim had already been settled. S appealed.

Unlawful discrimination a statutory tort

The main issue for the Court of Appeal was whether employment tribunals have jurisdiction to award compensation for psychiatric damages. The Court began by noting that the RR Act created a statutory tort and that by virtue of S.53 (1) the tort was one which could be enforced only in accordance with the Act's provisions. Those provisions gave tribunals exclusive jurisdiction to hear complaints in relation to discrimination in employment S.54(1). S.57 gave exclusive jurisdiction to county courts to hear complaints under Part III of the Act, which concerns discrimination in fields other than employment.

So far as remedies are concerned, S.57(4) states that compensation is payable in discrimination cases for injury to feelings, a head of damages not available at common law except in cases of defamation or false imprisonment. The Court accepted that there was a well recognized difference between injury to feelings and injury to health (physical or psychiatric injury), but stated that the subsection does not restrict the scope of injury which can be compensated to injury to feelings. To complete the scheme of the Act, S.56(1) permits a tribunal to order compensation of any amount which a county court can award by way of damages under S.57, except that a tribunal may only make orders where it considers that it is `just and equitable' to do so.

On behalf of the employee, a number of reasons were advanced as to why a tribunal should not be found to have jurisdiction to hear personal injury claims, including claims for psychiatric illness. The first reason was that Parliament could not have intended such a result because, when the RR Act was first passed, the statutory ceiling on the amount of compensation that could be awarded was too low for personal injury claims. The Court of Appeal rejected this argument on the basis that post traumatic stress disorder as such is a fairly recent phenomenon and it was also feasible that Parliament may have intended to put a tight limit on the financial consequences of the new tort.

The second reason put forward by the employee was that the three month time limit for bringing a discrimination claim would be unduly restrictive in personal injury claims as applicants may not know within that time that they have a psychiatric illness. In the Court's view, this argument could not prevail over the wording of the Act. Besides, there was no reason why a remedy hearing could not be split from the liability hearing and heard at a later date in appropriate cases.

The employee then pointed to Ss.3(2) and 3(3) of the Employment Tribunals Act 1996, which together state that a tribunal does not have jurisdiction to hear contract claims for damages for personal injury. As the duty of care owed by an employer to an employee can arise in both contract and tort, it would be anomalous if the tribunal could hear personal injury claims arising in tort. The Court thought that this argument missed the point. There was no suggestion that the tribunal could hear claims for damages based on negligence, whether the claims arose in contract or tort. The question was whether the tribunal can award damages for personal injury caused by the statutory tort of discrimination.

The employee's final argument was that tribunals are not fitted to deal with personal injury claims. He quoted London Fire & Civil Defence Authority v Betty where Morison J said that `to introduce questions of responsibility for illness or injury would take a tribunal down a path that could lead to endless dispute on matters on which they would have no special expertise'. While the Court of Appeal could see the force of that observation, they did not think that it could override the express language of the statute.

Tribunals can deal with personal injury

The Court of Appeal concluded that the language of the statute was clear - claimants are entitled to be compensated for loss and damage actually suffered as a result of the statutory tort of unlawful discrimination. This conclusion was supported by a statement by May LJ that damages for injury to the body and mind were available for the tort of race discrimination. May LJ had made this statement in Alexander v The Home Office, a case in which the Court of Appeal issued guidance on the assessment of damages for discrimination.

The Court of Appeal in the instant case held that employment tribunals do have jurisdiction to award damages for personal injury in cases of discrimination in employment under Part II of the RR Act and the county court has jurisdiction to award damages for personal injury caused by discrimination under Part III. The issue for the court or tribunal was simply one of establishing the necessary causal link between the discrimination and the personal injury. The Court added that employees who allege injury to health as well as injury to feelings would be well advised to obtain a medical report.

No test of foreseeability

Having arrived at that conclusion, it was clear that S had already settled his claim for personal injury as the claim was one which fell within the tribunal's jurisdiction. The fact that his cause of action in the county court was a claim based on negligence did not alter that finding. However, the Court of Appeal noted that a claim in negligence for psychiatric injury in the county court would differ from a claim based on the statutory tort before a tribunal in one important respect. To succeed in a claim of negligence, a claimant not only has to prove that the discriminatory conduct caused the psychiatric illness but must also establish that it was reasonably foreseeable that the conduct would cause the illness. The Court commented in passing that the test of reasonable foreseeability might be a difficult hurdle to overcome. The Court added that the advantage of the statutory tort of discrimination, from the employee's standpoint, is that the requirement of reasonable foreseeability does not have to be established at all under the RR Act.