O'Donoghue v Redcar & Cleveland Borough Council

Sex discrimination may be established where an unlawful motive had sufficient causative weight in a decision, although other proper motives also operated. An employment tribunal may infer discrimination from supported primary facts and its permissible factual findings should not be displaced through excessive scrutiny of incidental flaws.

Compensation for unfair dismissal may reflect the certainty that the employee would later have been dismissed fairly, even where the actual dismissal was substantively unfair. The tribunal must assess the chance of that future event, but need not always express it as a percentage. A hypothetical later dismissal may limit future earnings loss, but cannot reduce damages for injury to feelings already caused by a discriminatory dismissal.

A barrister employed by a local authority brought claims arising from her unsuccessful application for promotion, her subsequent dismissal and the compensation awarded for victimisation. Three Industrial Tribunal decisions respectively concerned sex discrimination in the appointment process, victimisation and unfair dismissal, and remedies.

The Employment Appeal Tribunal reversed the finding of discrimination in the appointment process. It upheld the finding that the appellant would inevitably have been dismissed fairly within six months and affirmed an award of £2,000 for injury to feelings.

The appellant challenged all three determinations. The central issues were whether the discrimination finding was supported by evidence, whether a substantively unfair dismissal could attract a reduction for an inevitable later fair dismissal, and whether that hypothetical dismissal could reduce compensation for injury to feelings.

Appeal allowed to the extent indicated. The Court, in a judgment delivered by Potter LJ and largely prepared by Bennett J, restored the Industrial Tribunal's finding of sex discrimination, upheld its conclusion concerning an inevitable later fair dismissal, and increased the injury-to-feelings award from £2,000 to £5,000.

1. The Industrial Tribunal had evidence from which it could find that the appointing panel was influenced both by proper advice concerning the appellant's working relationships and by her strongly expressed feminist views. In a mixed-motive case, the unlawful motive need not be the sole cause. It is enough that it had sufficient weight in the decision-making process to constitute a cause. The Tribunal had asked the correct questions and its conclusion was a permissible factual finding. The Employment Appeal Tribunal had therefore erred by substituting its assessment and characterising the finding as speculative.

2. A finding that the actual dismissal was substantively unfair does not invariably prevent compensation from being limited by a later hypothetical fair dismissal. Under the just and equitable compensatory principle, a tribunal may find that an employee would soon have been dismissed fairly because of persistent conduct or an attitude which the employer reasonably regarded as unacceptable and which the employee could not or would not moderate. Neither Polkey nor King v Eaton Ltd precluded that exceptional exercise.

3. The relevant inquiry concerns the chance of the future event. Although percentage assessment is often useful, it is not mandatory. Where the likelihood varies over time, a tribunal may identify a safe date by which it is satisfied that dismissal was certain and award full compensation until that date. Such a finding will rarely be available and requires compelling evidence. On the extensive findings about the appellant's conduct and lack of insight, the conclusion that fair dismissal was certain within six months was a permissible option.

4. Under sections 65 and 66 of the Sex Discrimination Act 1975, compensation could include injury to feelings caused by the discriminatory dismissal. The Tribunal properly excluded feelings attributable to earlier complaints, but wrongly discounted the remaining injury because of the notional later dismissal. That event could terminate future earnings loss, but could not dispel or supersede the anger, distress and humiliation already caused by dismissal for victimisation. The award was increased to £5,000.

The discrimination and remedy appeals were allowed. The victimisation and unfair dismissal appeal was dismissed. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The discrimination appeal was allowed and the Industrial Tribunal's decision restored. The victimisation and unfair dismissal appeal was dismissed. The remedy appeal was allowed and the injury-to-feelings award increased from £2,000 to £5,000: [2001] EWCA Civ 701.
2. Employment Appeal Tribunal: Allowed the Council's appeal against the finding of discrimination in the promotion process. It dismissed the appellant's appeals concerning the inevitable later dismissal and the remedy award.
3. Industrial Tribunals: The first Tribunal found no discrimination in the initial short-listing but found sex discrimination in the later appointment. A differently constituted Tribunal found victimisation and unfair dismissal, held that a fair dismissal would inevitably have occurred within six months, and later awarded £2,000 for injury to feelings.