Knowledge of discrimination not required for injury to feelings award
In T v XLN Telecom Ltd and ors, the EAT held that a tribunal erred in assuming that it could not make an award for injury to feelings in respect of unlawful victimisation, if the victim was not aware that the injury was actually caused by an act of discrimination.
A tribunal found that T’s dismissal, supposedly on performance grounds, was actually victimisation on the ground of race as it was significantly influenced by the fact that T had raised a grievance about a manager’s alleged racially offensive conduct. The tribunal made no award for injury to feelings, which T had claimed. It felt bound the Court of Appeal’s (CA) comment in Skyrail Oceanic Ltd v Coleman 1981 ICR 864 that injury to feelings must result from the knowledge that there had been an act of discrimination. T’s evidence was that what had really hurt him at the time was the employer’s failure to follow the statutory dismissal procedure (then in force). Therefore, any hurt feelings did not arise from the knowledge that the dismissal was discriminatory.
The EAT upheld T’s appeal. The ordinary principles in law in a claim for damages apply to the assessment of loss under the Race Relations Act 1976 (RRA). There is no requirement that the victim be aware of the wrongdoer’s reasons for acting in the way they did. As to the Skyrail case, if injury to feelings could only be recovered if the claimant knew of the discriminatory act, then that would be a surprising exception to the usual legal principles for the recovery of damages. In any event, the comment in Skyrail about knowledge of the discriminatory act was a criticism of the tribunal’s approach in that case and not the CA setting out a general principle of law.
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