Ali v Glaxo Welcome Plc

Permission to appeal will be refused where the proposed appeal has no real prospect of success and raises no compelling reason for further consideration. A party who has been given an opportunity to object to a tribunal’s constitution and agrees that the hearing should proceed cannot ordinarily complain later that the hearing was unfair or contrary to Convention rights.

Compensation for economic loss arising from discrimination remains compensatory. Where the evidence does not permit a precise percentage assessment of a lost opportunity, the tribunal may make a broad, commonsense assessment. An appellate court should not interfere merely because the award might have been higher.

The Employment Tribunal found that Abowork Ali had suffered direct racial discrimination when he was not shortlisted for employment by Glaxo Welcome Plc. At a remedies hearing it awarded him £3,000 for economic loss and £8,000 for injury to feelings, with interest.

The Employment Appeal Tribunal dismissed his appeal concerning the adequacy of the £3,000 award and refused permission to appeal. Mr Ali sought permission from the Court of Appeal, raising complaints about tribunal bias, the assessment of compensation, the adequacy of reasons, and an alleged breach of Article 13 of the European Convention on Human Rights.

1. Application refused. The proposed appeal had no real prospect of success and disclosed no other compelling reason for allowing it to proceed.
2. A party who has an opportunity to object to the constitution of a tribunal, receives advice not to object, and accepts that advice cannot later rely on the same matter as establishing a breach of Convention rights. Disclosure of circumstances which might affect the appearance of impartiality does not itself establish actual bias or demonstrate that the tribunal failed to act conscientiously and impartially.
3. Compensation for economic loss caused by discrimination is compensatory. The claimant must provide the evidence needed to establish the loss. A precise percentage-chance assessment may be undertaken where detailed evidence permits it, as illustrated by Ministry of Defence v Wheeler [1998] IRLR 23. Where the evidence is insufficient, a loss-of-opportunity assessment may be made on a broad and commonsense basis, following the approach described in Sharifi v Strathclyde Regional Council [1992] IRLR 259.
4. The Employment Tribunal had explained why it could not adopt a precise assessment. Its award of £3,000 was not shown to be perverse or obviously too low, particularly given the limited evidence and the tribunal’s assessment of the applicant’s prospects of obtaining the post. The Court of Appeal would not substitute its own assessment.
5. The new reliance on Article 13 did not assist. The Employment Tribunal had determined liability, awarded compensation for economic loss and made a substantial award for injury to feelings. There was no apparent denial of an effective remedy.

• Court of Appeal (Civil Division): Permission to appeal from the Employment Appeal Tribunal was refused.
• Employment Appeal Tribunal: The appeal against the remedies decision was dismissed and permission to appeal was refused.
• Employment Tribunal: Liability for direct racial discrimination was established. Compensation of £3,000 for economic loss and £8,000 for injury to feelings was awarded, with interest.