Callaway v Royal Mail Group Ltd & Anor

An appellate tribunal may interfere with an Employment Tribunal’s assessment of injury-to-feelings compensation only where the tribunal applied a wrong principle, misapprehended the facts, or made a wholly erroneous estimate. An award that appears low or high is insufficient.

A tribunal need not restate the characteristics of every Vento band where its reasons show that it understood the bands and assessed the impact of the conduct on the claimant rather than punishing the respondent. Comparisons with awards in other cases may assist, but are fact-sensitive and rarely establish perversity.

The claimant, a disabled former Royal Mail employee, had previously succeeded in a reasonable-adjustments claim and received compensation for injury to feelings. He later brought three further claims. The Employment Tribunal upheld claims concerning harassment or victimisation during a compensatable four-month period and a malicious false accusation, but dismissed his dismissal claim.

It awarded £12,000, including aggravated damages, for the first successful claim and £6,000, including aggravated damages, for the false accusation. The claimant appealed only the amounts awarded for injury to feelings. His challenge to the tribunal’s exclusion of earlier matters from the compensatable period had already failed at a preliminary appellate stage. The central issue was whether the awards disclosed an error of principle or were perversely low.

1. Appeal dismissed. The Employment Tribunal’s awards of £12,000 and £6,000 for injury to feelings, including aggravated elements, did not disclose an error of law.

2. The applicable appellate standard was strict. Under Gbaja-Biamila, Tchoula and Vento, intervention is justified only if the tribunal adopted a wrong principle, misapprehended the facts, or reached a wholly erroneous estimate. An appellate tribunal must not substitute its own preferred figure merely because it regards the award as low or high.

3. The tribunal had correctly directed itself by reference to HM Prison Service v Johnson, the updated Vento bands, and the need to assess the effect on the claimant rather than punish the respondents. Its failure expressly to repeat the defining features of every band did not establish that it had misunderstood them. Its reasons showed familiarity with the top band and an assessment of the actual compensatable period.

4. The challenge had to proceed on the basis that only the four-month period identified by the tribunal was compensatable. The tribunal had considered the claimant’s frustration, humiliation, anger, vulnerability and the serious cumulative criticisms it had made of the respondents. It was entitled to regard the shorter duration of the compensatable conduct as material.

5. The £12,000 award might appear low to some observers, but it was not outside the permissible bracket or perversely low. Comparison with Gilbank v Miles did not assist because the facts and impact in that case included materially different aggravating features. The aggregate award of £18,000 was therefore upheld.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s compensation awards were upheld.
• Employment Tribunal, Newcastle-upon-Tyne: decision sent to the parties on 31 July 2012. It awarded £12,000 for injury to feelings and aggravated damages in the first successful claim, and £6,000 in the second; the dismissal claim failed.