In the recent case of Taylor v XLN Telecom Ltd the Employment Appeal Tribunal held that the Claimant was entitled to recover for injury to feelings and personal injury attributable to dismissal even though the Claimant had not previously attributed such injury to knowledge of discrimination.
The Claimant had successfully brought a claim against his employers for unfair dismissal and unlawful race victimisation. However, the employment tribunal did not award any compensation for injury to feelings or injury to health.
The tribunal's reason for not making any such compensation was based on the Court of Appeal Case of Skyrail Oceanic Ltd v Coleman  (“Skyrail”) in which the following statement appeared in part of the judgment:
“Any injury to feelings must result from the knowledge that it was an act of … discrimination which brought about a dismissal.”
The Claimant had not given evidence that the act of unlawful racial victimisation found by the tribunal had caused his distress, anxiety, depression or hurt feelings. The Claimant had ascribed any injured feelings to the Respondent's failure to comply with disciplinary procedures. Consequently, the tribunal was reluctantly driven to the conclusion that it was impossible to make any award for injury to feelings.
The EAT found that, in fact, the Skyrail case did not set out any rule of law that injury to feelings or ill health awards may only be made where the Claimant has knowledge of the discrimination at the material time. The passage recited from the Skyrail judgment had been taken out of context and in fact concerned distinguishing injury caused by discrimination and injury caused by some other, non-discriminatory event. The whole of the relevant Skyrail judgment passage needed to be looked at, which was:
“Any injury to feelings must result from the knowledge that it was an act of sex discrimination that brought about a dismissal. Injury to feelings unrelated to sex discrimination, such as, in this case, the circumstance that leakages of information had taken place in July 1978 and that others might reasonably have suspected the appellant to have been responsible for them, is not properly attributable to an unlawful act of sex discrimination. The industrial tribunal thought that the circumstances in which the appellant had been dismissed might have damaged her reputation. That would not have been a consequence of sex discrimination and should have been disregarded.”
Moreover, the EAT was clear that discrimination is often not overt and there should be no reason why injured feelings or health could not be compensated for if the discrimination that caused it did not come to light until after the injury. To say that the victim of discrimination had to be aware of the discrimination when suffering the harm caused by it would present an unusual and unwarranted departure from the ordinary principles of compensation.
Employers will recall that the ‘Vento’ guidelines for injury to feelings awards were recently increased in the case of Da'Bell v NSPCC, such that a tribunal may award up to £30,000 in respect of injury to feelings in the most serious cases.