Esporta Health Clubs & Anor v Roget

An Employment Tribunal may not award compensation for injury to feelings without some material evidence of that injury. Although the Tribunal need not apply strict rules of evidence under rule 14(2) of the Employment Tribunals (Rules of Procedure), closing submissions are argument and comment, not evidence.

Ordinarily, injury to feelings should be addressed in witness evidence and tested by cross-examination. Where an award was based solely on material introduced in closing submissions, the proper course is to set aside that award and remit the issue for evidence and fresh assessment.

The claimant, a former employee, brought claims of race discrimination and victimisation under the Race Relations Act 1976, and a claim for wrongful dismissal. The Employment Tribunal upheld the victimisation and wrongful-dismissal claims. It awarded £5,000 for injury to feelings and £121 for wrongful dismissal.

The employers appealed only the injury-to-feelings award. The Tribunal confirmed, through the Burns-Barke procedure, that it had received no evidence on injury to feelings. It had relied on material advanced in closing submissions. The central question was whether that material could support the award.

1. Appeal allowed. The award of £5,000 for injury to feelings could not stand because the Employment Tribunal made it without receiving any material evidence concerning that loss.

2. Rule 14(2) of the Employment Tribunals (Rules of Procedure) means that an Employment Tribunal is not bound by strict rules of evidence. That procedural flexibility does not remove the requirement for some material evidence before it may compensate a claimant for injury to feelings.

3. Closing submissions are argument and comment upon evidence already received. They do not themselves constitute material evidence. The Tribunal also gave the appellants no opportunity to cross-examine because it had not treated the claimant's account as evidence.

4. When it became apparent that the claimant was effectively giving evidence during closing submissions, the Tribunal should have explained that this was not the proper means of doing so. There should then have been an opportunity to address his omission to give evidence and to apply to correct it.

5. The injury-to-feelings issue was remitted to the same Employment Tribunal. The claimant was directed to lodge a short statement within 21 days and attend for cross-examination. The Tribunal was to hear evidence and assess compensation for injury to feelings entirely afresh.

• Employment Appeal Tribunal: allowed the appeal against the injury-to-feelings award and remitted that issue to the same Employment Tribunal.
• Employment Tribunal, East London: judgment dated 13 February 2012 upheld claims for victimisation and wrongful dismissal, awarding £5,000 for injury to feelings and £121 for wrongful dismissal.