Vento v Chief Constable of West Yorkshire Police (No.2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery |
| Judgment Date | 20 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1871 |
| Docket Number | Case No: A1/2001/2866 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2002 |
[2002] EWCA Civ 1871
Lord Justice Ward
Lord Justice Mummery and
Lord Justice Jonathan Parker
Case No: A1/2001/2866
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEA
TRIBUNAL(MR JUSTICE WALL)
Royal Courts of Justice
Strand,
London, WC2A 2LL
MR CHRISTOPHER JEANS QC & MS JANE WOODWARK (instructed by Hewitt & Company) for the Appellant
MR DAVID BEAN QC & MR DAVID JONES (instructed by West Yorkshire Force Solicitor's Department) for the Respondent
This is the judgment of the Court.
Introduction
The appeal and the cross appeal raise two significant questions, which crop up with increasing frequency in the assessment of compensation for sex and race discrimination. First, what is the correct approach to compensation when unlawful discrimination results in the loss of the chance of a career? Secondly, what, in general, is the appropriate level of compensation for non-pecuniary loss, such as injury to feelings, and, in particular, how should the problem of double recovery for injury to feelings be approached, if awards of compensation for psychiatric injury and aggravated damages are also made?
In this case the Employment Tribunal ordered the respondent Chief Constable of West Yorkshire Police (the Chief Constable) to pay a total sum of £257,844 compensation for sex discrimination to the appellant Ms Angela Vento, a former probationary officer in his force. Of that total, the sum of £165,829 was awarded for loss of future earnings, calculated on the basis that there was a 75% chance of Ms Vento working in the police force for the rest of her career. The balance of the compensation (£74,000) was awarded for non-pecuniary loss: as to £65,000, for injury to feelings (including £15,000 aggravated damages) and, as to a further £9,000, for psychiatric damage. Interest of £18,015 was also ordered.
The Employment Appeal Tribunal upset the awards. It remitted the calculation of loss of future earnings for rehearing by a freshly constituted Employment Tribunal on the ground that there was an error of law in having proceeded on the basis that Ms Vento had a 75% chance of working in the police force for the rest of her career. As to compensation for non-pecuniary loss, the Appeal Tribunal held that the award of £65,000 for injury to feelings (including aggravated damages) was so excessive as to amount to an error of law. The Appeal Tribunal substituted a total award of £30,000 for injury to feelings, to include £5,000 aggravated damages.
The appeal is brought by Ms Vento, with the permission of a single Lord Justice, against the order of the Employment Appeal Tribunal dated 4 December 2001, allowing the Chief Constable's appeal against the Employment Tribunal's award of compensation for future loss of earnings based on a 75% chance of her completing a full police career.
The cross appeal by the respondent Chief Constable is against the Appeal Tribunal's failure to substitute, as compensation for injury to feelings, a significantly lower figure than £30,000. Ms Vento is content to accept the sum substituted by the Appeal Tribunal, but the Chief Constable contends that the award of compensation under that head is still manifestly excessive, having regard to (a) the undisturbed award of £9,000 for psychiatric injury, bringing the total substituted sum for non-pecuniary loss to £39,000; (b) the level of awards for injury to feelings in other cases of discrimination; and (c) the relevant guidelines laid down by the courts and compiled for the Judicial Studies Board for the assessment of general damages recoverable in personal injury cases (6 th Edition, 2002).
The cross appeal also raises a question under the Employment Tribunals Act 1996 on the role of this Court on an appeal from a decision of the Employment Appeal Tribunal re-assessing compensation.
Outline Facts
Ms Vento was born on 15 February 196She had a long held ambition to join the police force, but she was unable to do so before the height requirements were relaxed in 1995. On 11 December 1995, at the age of 28, she joined the police force as a probationary constable and began training to be an ordinary police constable. At that time she was married with 3 children. Initially she had the support of her husband, though he did not expect her to succeed in combining her responsibilities as a mother with those of a trainee police officer. The couple separated in 1996 and they were divorced in 1999.
In general, Ms Vento made good progress during her first year in her paperwork and in her work relationships. But in the first half of 1997 a series of incidents occurred when fellow police officers criticised her conduct, her personal life and her character in an unwarranted, aggressive and demoralising manner. The treatment was found to be less favourable than a hypothetical male officer would have received in the same circumstances. The tribunal inferred that the less favourable treatment was on the ground of her sex.
At first she coped well with the situation and with the effects of the recent breakdown of her marriage. On 12 May 1997, however, she was diagnosed as clinically depressed. She was given medication. She continued working until July 1997. She then went off work sick and was absent for 3 months. Although still on medication, she returned to work in October 1997. Further incidents of discrimination occurred following which she suffered suicidal impulses. The discriminatory treatment of her contributed to her depression and affected her ability to form relationships. On 8 December 1997 she was dismissed on the ground of alleged lack of honesty and lack of performance.
The Employment Tribunal found that Ms Vento did not have a vulnerable personality, which would increase the risk of failing to complete a full career in the police force to the retirement age of 55. It found that she would have successfully completed her probation and qualified as a police constable. It also found that she had limited career prospects. She was only likely to engage in clerical work in the future.
Proceedings in the Employment Tribunal
On 12 February 1998 Ms Vento presented an Originating Application claiming unfair dismissal and sex discrimination. (A claim for race discrimination was also made, but it was dismissed and not pursued on appeal).
After a 14 day hearing at Leeds the Employment Tribunal unanimously held that the Chief Constable was vicariously liable for acts of sex discrimination leading to the termination of her services as a probationary constable. The extended reasons for the decision were sent to the parties on 4 October 1999. A remedies hearing was directed.
The Chief Constable appealed to the Employment Appeal Tribunal against the ruling on liability. The appeal was dismissed on 8 June 2000. There was no appeal to this court. That was the end of the matter on liability. No arguments have been raised on this appeal that the Chief Constable cannot be held vicariously or constructively liable for acts of sex discrimination done by one police constable against another: cf Chief Constable of Bedfordshire v. Liversidge [2002] ICR.
The remedies hearing in the Employment Tribunal lasted for 5 days in February 2001. The tribunal unanimously decided to award compensation to Ms Vento in the sums mentioned in paragraph 2 above. The extended reasons for the remedies decision were sent to the parties on 5 March 2001.
On the issue of future loss of earnings the tribunal relied on Ms Vento's long held ambition to join the police force and her determination to pursue that career, even after her marriage had broken down and in the face of discrimination by colleagues. The tribunal referred to statistical evidence showing that in the recent past only a small percentage of women police officers have served in the force for over 18 years, to the introduction of family friendly working conditions in the police force and to the fact that Ms Vento was unable to have any more children. It concluded (paragraph 13)
"Drawing together the applicant's determination, changing social conditions and the desire to provide for her children, we have decided that there was a 75% chance that the applicant would have completed a full Police career had she not been dismissed."
The tribunal applied that percentage to the calculation of her future loss of earnings saying (paragraph 40)
"…we should calculate future loss by taking the sum which the applicant would have earned had she remained in the Police, deducting from that sum the amount that she had, or should have, earned elsewhere and applying a percentage discount to the net loss to reflect the chance that the applicant might have left the Police Force in any event."
The tribunal then considered the claim for injury to feelings. It referred to recent decisions of the Employment Appeal Tribunal and concluded (paragraph 47)
"..it is fair to say that the applicant has been put through four traumatic years by the conduct of the respondent's officers. The process started with the bullying of her in January 1997. That contributed to her clinical depression diagnosed in May of that year. It reached its zenith with the July tutorial, following which the applicant went off sick. When she returned to work in October, she faced the two case conferences at the beginning and end of November. She then had the shock and disappointment of dismissal in December, followed by these proceedings which were started in February of 1998. She had to prepare herself...
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