Abegaze v Shrewsbury College of Arts and Technology

An appeal to the Employment Appeal Tribunal must identify an error of law. It cannot succeed merely by challenging a tribunal’s fact-sensitive assessment of competing medical evidence, causation, or the amount of compensation.

For a single act of direct race discrimination, an award for injury to feelings may properly be moderated where other contemporaneous events materially contributed to the claimant’s condition. A subsequent job does not automatically end future loss, but loss may fairly end where the claimant’s own misleading conduct caused dismissal from that employment.

The claimant, who is Ethiopian, was refused employment by the respondent in September 1999. An Employment Tribunal later found that the refusal was direct race discrimination.

Following earlier procedural litigation, a differently constituted Employment Tribunal assessed remedy in a judgment sent on 23 January 2012. It awarded £25,787 in total, including £4,000 each for personal injury and injury to feelings, and loss of earnings to July 2000.

The claimant appealed, contending principally that the tribunal had wrongly assessed the medical evidence, compensation and continuing loss of earnings. The central issue was whether those challenges disclosed an error of law.

1. Appeal dismissed. The claimant’s grounds were, in substance, challenges to factual findings and to the Employment Tribunal’s assessment of compensation. They disclosed no error of law and therefore could not found an appeal.

2. The tribunal was entitled to prefer the respondent’s medical evidence. It gave cogent reasons, including concerns about attempts to influence the claimant’s expert. Its assessment of the claimant’s pre-existing vulnerability and other contemporaneous causes of deterioration was a factual exercise.

3. The awards of £4,000 for injury to feelings and £4,000 for personal injury were open to the tribunal. The discrimination was a single act. The tribunal properly applied the Vento scale, avoided double counting, and moderated compensation to reflect other material causes, including rejected applications and litigation affecting the claimant at the time.

4. New employment does not invariably terminate a claimant’s future loss. Consistently with Dench v Flynn & Partners [1996] IRLR 653, the tribunal did not treat the new job as an automatic cut-off. It was nevertheless entitled to end loss when the claimant obtained that employment because his later dismissal resulted from his misleading the new employer, rather than from the respondent’s discriminatory refusal.

5. The Rule 3(10) application, and with it the appeal, was dismissed.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against the remedy award.

• Employment Tribunal, Birmingham: in a judgment sent on 23 January 2012, awarded compensation for the established discrimination.

• Court of Appeal: set aside an earlier strike-out in the same proceedings, holding that an unless order should first have been made: [2010] IRLR 238.

• Employment Appeal Tribunal and Employment Tribunal: an earlier appeal had upheld the strike-out made in 2006.

• Employment Tribunal: by a majority judgment sent on 20 November 2000, found that the respondent had discriminated against the claimant on racial grounds.