British Telecommunications Plc v Reid

A tribunal assessing compensation for injury to feelings caused by direct discrimination may take account of consequential distress. The additional matters need not themselves be discriminatory, but they must be causally connected with the discriminatory act. Tribunal reasons are sufficient when read fairly as a whole if they enable the parties and an appellate court to understand the conclusion.

Aggravated damages remain available in discrimination claims where the employer's conduct is high-handed, malicious, insulting or oppressive. They are compensatory and must not duplicate an award for injury to feelings. Whether conduct such as promoting the alleged discriminator during an unresolved investigation is aggravating is a fact-sensitive question.

Mr Reid, a black employee of British Telecommunications plc, succeeded before an Employment Tribunal on one complaint of direct race discrimination. A colleague had made a racially offensive and threatening remark during an altercation at work. The tribunal awarded £6,000 for injury to feelings and £2,000 aggravated damages.

British Telecommunications appealed unsuccessfully to the Employment Appeal Tribunal. It then appealed to the Court of Appeal, without challenging liability. It contended that the tribunal had wrongly included the consequences of the incident in its injury-to-feelings assessment and had lacked a proper basis for aggravated damages.

1. Appeal dismissed unanimously. Ward LJ gave the principal judgment, with which Latham LJ agreed. Keene LJ also agreed and added observations on aggravated damages.
2. The Employment Tribunal was entitled to include, in its assessment of injury to feelings, the unjustified disciplinary investigation of Mr Reid, the impact on his health, the transfer which followed the incident, and the delay in resolving his grievance. Those matters were capable of being consequences of the discriminatory act. They did not need independently to constitute discrimination. The factual findings supported the necessary causal connection.
3. The tribunal's reasons, though capable of fuller expression, sufficiently showed that it treated those matters as flowing from the incident. Reasons must be read sensibly and as a whole. The decision enabled the parties and an appellate court to understand why the award had been made. The £6,000 award was also within the guidance in [2002] EWCA Civ 1871 and was not excessive.
4. Aggravated damages may be included in a compensatory discrimination award where the discriminator has behaved in a high-handed, malicious, insulting or oppressive manner: Alexander v Home Office, [1988] IRLR 190. The employer's failure to punish Mr Edwards and, particularly, his promotion while the complaint remained unresolved were relevant circumstances. Promotion during disciplinary or grievance proceedings does not generally establish high-handed conduct. In the circumstances of this case, however, the tribunal was entitled to treat it as aggravating Mr Reid's injury and to award £2,000.
5. Keene LJ stressed that aggravated damages are compensatory, including for injury to feelings, and that tribunals must avoid double counting where they also make an injury-to-feelings award. No double-counting challenge was advanced here. The total award of £8,000 therefore stood.

• Court of Appeal (Civil Division) — dismissed British Telecommunications plc's appeal and upheld the awards for injury to feelings and aggravated damages: [2003] EWCA Civ 1675.
• Employment Appeal Tribunal — dismissed the employer's appeal in a decision sent to the parties on 5 June 2003.
• Employment Tribunal — in a decision promulgated on 5 July 2002, upheld one complaint of direct race discrimination and awarded £6,000 for injury to feelings and £2,000 aggravated damages.