Essa v Laing Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Clarke,Lord Justice Rix |
| Judgment Date | 21 January 2004 |
| Neutral Citation | [2004] EWCA Civ 2 |
| Docket Number | Case No: A1/2003/0523 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 January 2004 |
[2004] EWCA Civ 2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE SEROTA QC
AT THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Pill
Lord Justice Clarke and
Lord Justice Rix
Case No: A1/2003/0523
MR D BEAN QC & MR M. SETHI (instructed by Hawkins,Russell,Jones, AL8 6RD) for the Appellants
MISS S MOOR (instructed Race Equality First) for the Respondent
MISS K MONAGHAN (instructed by Equal Opportunities Commision, Commission for Racial Equality, and Disability Rights Commission SW1H 0BH) for the Interveners
Crown Copyright ©
This is an appeal by Laing Limited ("the appellants") against a decision of the Employment Appeal Tribunal ("EAT"), His Honour Judge Serota QC presiding, dated 17 February 2003. The EAT allowed an appeal by Mr Yassin Essa ("the respondent") from a decision of an Employment Tribunal held at Cardiff on 12 March 2001 to consider the compensation payable to Mr Essa following the finding of a tribunal in March 2000 that a complaint of race discrimination against the appellants was established. In a decision sent to the parties on 30 March 2001, the tribunal ordered the respondents to pay the appellant £5,519.76 compensation for race discrimination consisting of £591.76 for financial loss and £5,000 for injury to feelings. The EAT remitted the matter to the Employment Tribunal:
"To reconsider questions of compensation having regard to such findings as they might make and to what extent Mr Essa's psychological injury was a direct cause of the racial abuse he suffered on the 28 th day of July 1999, whether there was any intervening cause such as an unreasonable refusal or failure to seek and follow medical advice. It is necessary to consider questions that might be relevant in this regard to mitigation of damages".
The award for injury to feelings is not now challenged by either side. Nor is the dismissal of claims made by the respondent against the appellants, and his employer, of constructive dismissal and the complaint of race discrimination against his employer. The relevant findings of the Employment Tribunal were that the conduct of Mr Pritchard, an employee of the appellants, on 28 July 1999 constituted "less favourable treatment" within the meaning of section 1 of the Race Relations Act 1976 ("the 1976 Act"), that the respondent was subjected to a "detriment" within the meaning of section 7 of the Act and that, by virtue of section 32 (1) and (3), Mr Pritchard's act on 28 July was "treated as done by" the appellants.
The facts
Within the narrow factual context in which the issue of law arises, the relevant facts can be stated briefly. The respondent is a Welshman who has lived all his life in Cardiff. He is black. He has earned his living as a labourer and construction worker and has represented Wales many times as an amateur boxer. In the spring and summer of 1999, he was employed by a Mr Rogers on the construction of the Millennium Stadium at Cardiff Arms Park. The respondent was a member of a gang of about fifteen subject to the instructions and supervision of Mr Pritchard, who was employed by the appellants, the main contractors, as a foreman. They were working under pressure because of the need to complete the stadium in time for the Rugby World Cup and, as the tribunal found, Mr Pritchard's quite abrasive style of foremanship achieved highly effective results. It was in that context that the tribunal made the following findings:
"On 28 July Mr Pritchard was giving instructions on the allocation of work to a Mr Grayson Williams who was employed by Mr Rogers [the respondent's employer] but supervised Mr Pritchard's gang. The evidence was that there were about 15 men present on this occasion. According to Mr Essa, Mr Pritchard said to Mr Williams "get the boys organised". He then turned and, pointing at Mr Essa who was sitting down reading his payslip, he said "and make sure that black cunt doesn't wander off". Mr Essa was extremely hurt and in tears. He said that Mr Williams said "I can't believe he said it. He shouldn't have said it." Mr Essa expressed his hurt in highly emotional terms and at great length to the tribunal and there could be no possible doubt that he was extremely distressed. He wept and said "he called twenty men 'boys' and he called me a black cunt". He said "he looked at me like an animal. It took my humanity from me". He stressed over and over to the tribunal that he was born in Cardiff only around the corner from the stadium."
The tribunal found the remark "grotesquely offensive".
Mr Pritchard told the tribunal he deeply regretted making the remark. It was "merely a throw-away comment made without malice ". On 6 August, Mr Pritchard was subjected to a disciplinary hearing and received a final written warning. By that time, the respondent to whom an apology was made, had left the site.
The tribunal considered the consequences;
"Mr Essa gave evidence as to the effect Mr Pritchard's remark had on him. He said that he came from a decent family where obscenities were never used. He had heard bad language on sites but had never been spoken to in the way Mr Pritchard had spoken to him. He said the incident of 28 July so affected his health that he had been treated by his doctor for depression. He has stopped looking for work because he will always be wondering if his boss is thinking of him in the terms expressed by Mr Pritchard. It also affected his boxing. He was picked to carry the Welsh flag before boxing for Wales against Scotland but became upset whilst carrying it, asking himself what right he had to be representing Wales. He was overcome with similar feeling during the fight. He says why cannot people see him for what he is and not for the colour of his skin. He says it was "the way he spoke to me, it was the way he treated me, I'll take it to my grave…. The only thing I'd done was to be black and to go to work… I am Welsh and no one can take that away from me". His sense of rejection as a Welshman has so distressed him that he intends to leave Wales and to take up professional boxing in England."
The statute
The respondent's relevant proceedings were brought pursuant to section 54 of the 1976 Act. Section 56 provides, insofar as is material:
"(1) Where an [Employment Tribunal] finds that a complaint presented to it under section 54 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 or [in Scotland] by a sheriff court to pay to the complainant if the complainant had fallen to be dealt with under section 57."
Section 57 provides, insofar as is material:
"(1) A claim by any person ("the claimant") that another person ("the respondent") –
(a) has committed an act of discrimination against the claimant…
(b) … may be made the subject of civil proceedings in like manner as any other claim in tort or (in Scotland) in reparation for breach of statutory duty…
(4) For the avoidance of doubt it is hereby declared that damage 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."
The decision and the issue
In their decision following the remedies hearing, the Employment Tribunal said, in relation to special damages:
"In calculating special damages we bear in mind that the respondents [the present appellants] are only liable for such reasonably foreseeable loss as was directly caused by the discriminating act. We find that the direct cause of Mr Essa's departure on 5 August 1999 was the incident of 28 July, in that his distress was such that it rendered him so over-sensitive to the reasonable reprimand given him by Mr Rogers, his employer, that he was unable to continue working on the site. Had he not left prematurely he would have been there for a further three weeks until the end of August, when all Mr Rogers' workers finished on site. The respondents might well have reasonably foreseen that the incident would lead to distress and premature departure but they could not have reasonably foreseen the extent of Mr Essa's reaction to it and his subsequent failure to look for other work. We therefore confine compensation for loss of earning to three weeks at £189.92 per week that is £569.76 less £75 benefit received at £50 per fortnight, totalling £519.76 [sic]."
While the award for injury to feeling is not under challenge, it is relevant to note the tribunal's approach to damages under that head. Having referred to the evidence of a dramatic personality change and dramatic change in lifestyle, the tribunal stated:
"We have no doubt that Mr Essa has suffered hurt and humiliation as would any reasonable person in a similar situation. We bear in mind that the award for injury to feelings depends not so much on the seriousness of the discrimination as on the nature of Mr Essa's reaction to that discrimination. Mr Essa's reaction however, was extreme. It was so extreme as to have been irrational. In our view Mr Essa has not helped himself. His trainer, Mr Kitchen, gave him excellent advice when he told him to try to put the incident behind him. He did not do so. He stayed indoors and dwelt on the incident and allowed it to poison his mind to such an extent that he was unable to look for work or to take any other positive steps to get his future back on track. To make matters worse he took...
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