Massey v Unifi

Compensation for unjustifiable trade-union discipline under the statutory “just and equitable” standard is not subject to an additional foreseeability requirement. Loss arising naturally and directly from the wrong may be recovered. Injury to feelings should be assessed flexibly by reference to the applicable Vento bands, taking account of intensity, duration and relevant medical evidence. Litigation stress must not automatically displace continuing injury caused by the wrong. A physical injury proved to have been caused by the wrong may be treated as indivisible even where a pre-existing condition would probably have produced it later. Damages should then be discounted for acceleration, rather than apportioned among every stressor. Aggravated damages remain exceptional.

Mrs Massey was found to have been subjected to unjustifiable discipline by her trade union. The discipline consisted of a no-confidence motion and a two-year bar on holding union office. The Employment Tribunal upheld three of seven complaints on 9 January 2004. The Employment Appeal Tribunal allowed the union’s liability appeal in part, leaving two complaints established.

On 7 September 2006, the Employment Appeal Tribunal awarded £17,000 compensation. The award comprised injury to feelings and personal injury damages, reduced by 15% for Mrs Massey’s contribution. Mrs Massey appealed and the union cross-appealed on injury to feelings, aggravated damages, foreseeability, quantum, apportionment and contribution. The central issues were how the statutory compensation should be assessed and how the stroke should be attributed between the unlawful discipline, a pre-existing condition and other stresses.

Disposition. The Court of Appeal allowed Mrs Massey’s appeal to the extent of increasing compensation from £17,000 to £31,875. The union’s cross-appeal failed.

1. Injury to feelings. The guidance in Vento required the case to be placed in the upper part of the middle band. The assessment had to reflect the intensity and duration of the injury, including the general practitioner’s contemporaneous notes. Continuing injury caused by the unlawful discipline could not simply be treated as litigation stress from the commencement of proceedings. The award was increased from £7,500 to £12,500. The Employment Appeal Tribunal was entitled to reject the alleged ostracism because the evidence did not establish a sufficient causal connection.
2. Aggravated damages. Aggravated damages may be available under section 67(5) of the Trade Union and Labour Relations (Consolidation) Act 1992 by analogy with discrimination cases. Conduct must reach the threshold of being high-handed, malicious, insulting or oppressive. Exceptionally unreasonable litigation conduct may suffice, and the absence of an apology may be relevant, but an apology’s absence alone cannot cross the threshold. The refusal to award aggravated damages was not perverse.
3. Foreseeability. “Just and equitable” compensation under section 67 did not attract an additional foreseeability test. The statutory wording and the nature of the statutory wrong supported the approach in [2004] ICR 746. In any event, if foreseeability were required, the relevant kind of injury was foreseeable and causation was established by medical evidence.
4. Personal injury and apportionment. The stroke was an indivisible physical injury caused by the unlawful discipline. The case did not require apportionment among all contributing stressors. The pre-existing atheroma was relevant because it meant that a stroke would probably have occurred by 2011, so the £50,000 general-damages figure was discounted by 50% for acceleration, producing £25,000. Litigation stress was closely connected with the unlawful discipline, and the evidence did not establish ostracism as an equivalent cause.
5. Contribution. The 15% reduction under section 67(7) was based on the correct test of culpable or blameworthy conduct causing or contributing to the discipline. The assessment was one of fact and degree and disclosed no legal error.

1. Court of Appeal (Civil Division). In [2007] EWCA Civ 800, the appeal was allowed in part and compensation was increased to £31,875.
2. Employment Appeal Tribunal. On 7 September 2006, in UKEAT/0223/04/MAA, the EAT awarded £17,000. On 3 August 2004 it had allowed the union’s liability appeal in part.
3. Employment Tribunal. On 9 January 2004, the tribunal upheld three of seven complaints of unjustifiable discipline; two remained established after the EAT appeal.