Lisk-Carew v Birmingham City Council

Compensation for statutory victimisation is confined to loss caused by the victimisation. A tribunal may find that employment loss resulted from a fair dismissal for misconduct, even though protected acts significantly influenced the dismissal. In that event, it may award compensation for injury to feelings but refuse loss-of-earnings damages. The causation question may be expressed by asking whether the non-discriminatory misconduct was the effective and dominant cause, or whether the claimant would still have been fairly dismissed if the protected acts were disregarded. The tribunal may also consider whether any larger award would be just and equitable.

Following earlier merits proceedings, an Employment Tribunal found that Birmingham City Council had victimised Mr Lisk-Carew, but also found that his dismissal was fair and principally caused by misconduct, namely unwillingness to implement policy and repeated failure to comply with reasonable directions. At the remedies hearing, it awarded £5,000 for injury to feelings but rejected loss-of-earnings and health-related claims as not caused by victimisation. The Employment Appeal Tribunal dismissed his appeal. This appeal concerned whether those findings were contradictory and whether further compensation was due.

Appeal dismissed unanimously. Lord Justice Hooper gave the leading judgment. Lord Justice May agreed and Lord Justice Kennedy agreed with the reasons given.

1. The appeal was confined to the remedy issue. The appellant could not reopen the Employment Tribunal’s findings on the merits, including the finding of victimisation.
2. The statutory compensation jurisdiction under section 57 of the Race Relations Act 1976 required compensation for loss caused by the victimisation. The finding that protected allegations had exerted a significant, largely subconscious influence did not necessarily mean that the dismissal would not have occurred without them.
3. The Employment Tribunal was entitled to find that the loss of employment resulted from a fair dismissal for misconduct. Its findings that the principal reason for dismissal was the appellant’s unwillingness to implement the Council’s policy and repeated failure to comply with reasonable management directions were decisive. The Tribunal could properly conclude that he would still have been dismissed, and fairly dismissed, if those were the only grounds relied upon.
4. The same conclusion could be expressed by asking whether that misconduct was the effective and dominant cause of the dismissal. On the Tribunal’s findings, the answer was yes. The refusal to award compensation for loss of earnings was therefore sustainable, while the £5,000 award for injury to feelings remained.
5. Lord Justice May added that, even if the merits decision were read as identifying two causes, the Tribunal could lawfully treat the appellant’s conduct as the effective and dominant cause. It could also have concluded that a larger award was not just and equitable. Those were alternative grounds supporting the result.

The order was: appeal dismissed, with costs subject to detailed assessment.

• Court of Appeal (Civil Division): In [2004] EWCA Civ 565, the appeal against the Employment Appeal Tribunal’s remedy decision was dismissed.
• Employment Appeal Tribunal: Dismissed the appeal from the Employment Tribunal’s remedies decision; citation not stated in the judgment.
• Employment Tribunal: Found victimisation on the merits, but held that the dismissal and resulting employment loss were caused by a fair dismissal for misconduct. It awarded £5,000 for injury to feelings and no compensation for loss of earnings.