Assoukou v Select Services Partners Ltd & Ors

LORD JUSTICE LEVESON: This is an appeal from a decision of the Employment Appeal Tribunal, dismissing the appellant’s appeal from a decision of an Employment Tribunal which had declined to make any award of compensation to the appellant in relation to his allegation of sexual discrimination that his former employers had been debarred from defending, having failed to give notice of appearance in time.

The appellant had also sought to appeal against the compensation awarded for unfair dismissal, but following perusal of the papers the Employment Appeal Tribunal dismissed that aspect of the appeal. That order could have been challenged at an oral hearing, but rather than doing so the appellant said that he would take no further step in the proceedings until the provision that supported that dismissal was provided. As a result, when the substantive appeal came to be heard, the appellant did not appear and the Employment Appeal Tribunal had to proceed as best it could with the assistance of the respondent only.

In this court the respondent has contented itself to rely on the decision of the Employment Appeal Tribunal, so that at no appellate level have both sides appeared to argue the matter.

The background facts, which support the allegation of sexual discrimination, can only be taken from the decision of the tribunal and the appellant’s application. In this last document he described the incidents, which he believed amounted to discrimination in these terms:

“From 13 October 2004 to 20 October 2004, never I have got paid for any bank holiday. The reason given to me was that I was a part timer according to … the assistant manager. In the meantime, he was paying the other part time staff for all the bank holiday ... In September 2004, I was granted holiday from my school … when I gave my school letter to … the unit manager in order to work some overtime, he refused to accord me any, despite my letter, while Yolanda, another student was working full time without any letter from her school stipulating that she was on holiday. When I have asked the reasons of this different treatment to [the unit manager], he told me that he was free to do whatever he wants. Anne Gilis was a trainee supervisor. Any time I complained because she does not want to follow instructions or obey any of the company policies, [the unit manager] calls me outside the unit and tells me to leave her alone no matter whether or not she follows the company policy.”

The account then outlines the appellant complaining of discrimination. It is unnecessary to detail his account further because before this complaint could proceed, immigration problems supervened and the appellant appears to have been detained. Not knowing the reason for his absence the respondents dismissed him, although when they learned why he had not been at work, reinstatement was or would have been offered.

In the event the appeal tribunal later accepted evidence placed before it that at least from 29 October 2004 the appellant was not permitted to work in the United Kingdom. The appellant emphatically challenges this last conclusion and maintains that he was perfectly entitled to work, but the Employment Appeal Tribunal having dismissed that aspect of the case and no leave having been obtained to pursue the matter further, it can proceed no further.

Reverting to the claim for compensation for sex discrimination, it is not entirely clear to what extent the complaint which I have set out is specifically one of discrimination on grounds of gender as opposed to other forms of discrimination. Further, neither the Employment Tribunal nor this court has been provided with a note of any evidence given before the Employment Appeal Tribunal that might have elaborated the nature of his complaint. In that regard the reasons for its decision are very brief, almost to the point of being terse, in these terms:

“In relation to the claim of sex discrimination, the only head of damage is injury to feelings. When asked about how he felt about the sex discrimination, Mr Assoukou told us that he was angry and frustrated. He has not demonstrated any injury to feelings to us and we can therefore make no award in relation to injury to feelings.”

This problem was confronted by the Employment Appeal Tribunal. In its judgment, Burton J explained its approach in these terms in paragraphs 12 and 13:

“Doing our best to understand that judgment, with some assistance from Mr Nathan, and of course without the presence of the Appellant, it appears to us that the finding of sex discrimination was by reference to the fact that, on the case for the Appellant, the First Respondent (no doubt aided and abetted, on his case, by the named Respondents) dealt inadequately and, on his case, discriminatory with him in relation to allocation of work as between him and others. It is possible that that dismissal itself was said to be discriminatory, but that is unclear. The findings of the Tribunal were, as we have indicated, that in any event this Appellant was not entitled to be employed at all by the Respondent after 29 October 2004; and it appears to us clear that any anger or frustration which the Claimant felt, would have been felt, and was felt, as to arrangements to be made by his employers with regard to how he worked with them.”

“Given the finding of the Tribunal that he could, in any event, not have continued to work for the Respondent, it does not appear, in those circumstances, surprising that the Tribunal awarded no compensation in respect to injury to feelings. He has no doubt felt, [and] indeed it appears clear from his own recent letter to the Employment Tribunal that he continues to feel, angry and frustrated in respect of the fact that the Respondent does not employ him, but it appears to us that that does not flow out of the sex discrimination claim that was found in his favour by the Tribunal.”

Before this court the appellant has provided some detail, which explains the nature of the injury to feelings about which he spoke to the tribunal. The feature before this court that has caused concern is the conclusion that anger and frustration did not represent an injury to feelings. What does injury to feelings comprehend if not, among other things anger and frustration? This issue was analysed by this court in Vento v The Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, [2003] ICR 318, in which giving the judgment of the court, Mummery LJ said at paragraphs 50 and 51:

“It is self evident that the assessment of compensation for an injury or loss, which is neither physical nor financial, presents special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedent. Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise. As Dickson J said in Andrews v. Grand & Toy Alberta Ltd [1978] 83 DLR (3d) 452 at 475-476, (cited by this Court in Heil v. Rankin [2001] QB 272 at 292, paragraph 16) there is no medium of exchange or market for non-pecuniary losses and their monetary evaluation

‘… is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution.’

“Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury. In these circumstances an appellate body is not be entitled to interfere with the assessment of the Employment Tribunal simply because it would have awarded more or less than the tribunal has done. It has to be established that the tribunal has acted on a wrong principle of law or has misapprehended the facts or made a wholly erroneous estimate of the loss suffered. Striking the right balance between awarding too much and too little is obviously not easy.”

It is also worth emphasising the point made by Smith J, as then she was, in Her Majesty’s Prison Service v Johnson [1997] ICR 275 at 283(b) that awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Even more so, accepting that discrimination caused anger and frustration, to make no award would undermine the value of establishing that particular breach of duty and thus impact on the efficacy of the policy.

I go back to the difficulty of discerning the true nature of the discrimination found by the Employment Tribunal, aggravated no doubt by the appellant’s unfortunate refusal to participate in the hearing before the Employment Appeal Tribunal, or otherwise to place further material before the tribunals which have considered his claim. Having regard to all the circumstances, and in particular his own description in the originating application and the way in which he put the matter before the Employment Tribunal, we have come to the conclusion that it appropriate to award a sum of money to represent his frustration and anger although the sparse material justifies a modest award only.

The appellant has made it clear that the very fact of appearing before the court has itself done much to alleviate his feelings. In the circumstances, I would award him the sum of £500 and, to that extent, allow the appeal.

LORD JUSTICE LAWS: I agree.

LORD JUSTICE WALLER: I agree.