Assoukou v Select Services Partners Ltd & Ors

Injury to feelings in discrimination proceedings includes emotional responses such as anger and frustration. A tribunal must make the best sensible assessment available from the evidence, although non-pecuniary loss cannot be measured with precision. Where discrimination is established, making no award merely because the claimant describes anger and frustration risks undermining the statutory policy. The award may nevertheless be modest where the material is limited. An appellate court should intervene only for an error of legal principle, a misapprehension of fact, or a wholly erroneous estimate of loss.

The claimant appealed to the Court of Appeal from the Employment Appeal Tribunal, which had dismissed his appeal from an Employment Tribunal’s decision not to award compensation for a successful sex-discrimination claim. The employers had been debarred from defending after failing to give notice of appearance in time.

The Employment Tribunal treated injury to feelings as the only head of damage and made no award because the claimant had described himself as angry and frustrated but had not, in its view, demonstrated injury to feelings. The Employment Appeal Tribunal considered that these feelings principally concerned the claimant’s inability to continue working. The central issue was whether anger and frustration could constitute injury to feelings and whether, on the available material, a nil award was permissible.

1. Appeal allowed. The Court of Appeal awarded the claimant £500 for injury to feelings.
2. Anger and frustration are capable of constituting injury to feelings. The Employment Tribunal’s conclusion that those emotions did not demonstrate such injury was therefore based on an incorrect approach to the nature of the loss. The court applied the principles stated in Vento v The Chief Constable of West Yorkshire Police, [2002] EWCA Civ 1871, including that hurt feelings are real in human terms although their monetary assessment is necessarily artificial.
3. The assessment must be sensible and fair on the available material. It need not have the evidential precision possible in cases of financial or bodily injury. An appellate court should intervene only where the tribunal acted on a wrong legal principle, misunderstood the facts, or made a wholly erroneous estimate of the loss suffered.
4. The court relied on the warning in Her Majesty’s Prison Service v Johnson, [1997] ICR 275, that awards should not be set too low because that would diminish respect for the policy of anti-discrimination legislation. Once discrimination has been established, a nil award for anger and frustration would undermine the value of that finding and the efficacy of the legislation.
5. The precise nature of the discrimination was difficult to discern and the evidential material was sparse. Those limitations justified only a modest award. The claimant’s statement that appearing in court had alleviated his feelings was also relevant to the sum awarded. Lord Justice Laws and Lord Justice Waller agreed with Lord Justice Leveson.

• Court of Appeal (Civil Division): allowed the appeal and awarded £500 for injury to feelings.
• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Tribunal’s decision not to award compensation for injury to feelings.
• Employment Tribunal: found sex discrimination but made no award, treating injury to feelings as the only head of damage and concluding that anger and frustration did not demonstrate such injury.