Free Employment Advice - Foreseeability: Race Discrimination

E, a Welshman of black Somali origin, was an amateur boxer who had represented Wales. He worked as a labourer. In June 1999 he was working on the construction of the Millenium Stadium in Cardiff. He was subjected to racial abuse and insult. He complained to his employers but the complaints were not taken seriously. The abuse continued. E walked off the job and complained of constructive dismissal and race discrimination. His complaints were upheld and he was awarded £5000 compensation for injury to feelings and £500 for financial loss. He appealed to the EAT against the amount of the award.

Decision of the EAT:

• E had been treated for depression. He had suffered a serious sense of rejection as a Welshman and had suffered a dramatic personality change. He became morose, withdrawn and careless, started smoking and drinking, and became prejudiced against white people. He became violent and aggressive.

• The tribunal took the view that the employer was liable only for such reasonably foreseeable loss as was directly caused by the discriminating act.

• The EAT ruled that compensation for psychological damage caused by unlawful discrimination could be recovered in every case where the victim could prove that the act of discrimination caused the damage or loss. Provided that the discriminatory act caused the loss, it was irrelevant that the loss was not reasonably foreseeable by the employer.

• The matter should be remitted to the tribunal to consider the question of compensation.

• The award of £5000 for injury to feelings was within the appropriate bracket and there was no basis to interfere with it.

This decision was confirmed by the Court of Appeal (2004) The Times, January 30. The Court of Appeal made the following points:

• In assessing compensation for a victim of unlawful race discrimination, the appropriate test to be applied was the establishment of a causal link between the act of discrimination and the alleged injury.

• It was unnecessary to superimpose the requirement to establish that the injury was reasonably foreseeable.