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In refusing to increase a £6,000 damages pay-out awarded to an Army chef after he was called a ‘dumb black b***ard’ by a sergeant, the Court of Appeal has underlined the importance of public perception and that victims of race discrimination must not be seen as being over-compensated for their injured feelings.
Lawyers representing the African-born private had argued that the award was far too modest after he was racially abused while serving in the Falklands. He was deeply upset when the sergeant, who was in authority over him and whose word he was obliged to obey, told him to ‘shut up, you dumb black b***ard’ during a discussion about a black England footballer.
There was no dispute that the sergeant had uttered the relevant words and it was submitted that the abuse fell within the middle category of seriousness and that the chef’s compensation should be doubled to £12,000 – the sum originally awarded by an Employment Tribunal before it was halved by the Employment Appeal Tribunal (EAT). However, in dismissing the appeal, the Court ruled that the EAT had properly directed itself in finding that the original award was manifestly excessive.
The Court concluded, “It is important that awards should not be too low, thereby trivialising the harm. But it is equally important that they should not be too high, since that risks creating the impression that victims of discrimination are over-compensated and being given unfairly generous treatment when compared with victims of personal injury, for example.
“This was not a discriminatory act resulting in dismissal or refusing a job application. It was an offensive comment. I see no justification for a one-off incident of this nature being placed in the middle category. There were some aggravating features, (but also some mitigating ones), but in my view the EAT gave ample credit for those when placing the figure at the top of the lower band.
“In cases of this kind, where the proper and consistent application of the guidelines is important, the EAT is particularly well placed, with its overview of a range of cases, to ensure that the objectives of consistency and fairness are properly maintained.”
This case highlights the critical need to ensure that your equality procedures are up to date and that your staff are made aware and given appropriate training in order to avoid unlawful discriminatory behaviour, which employers are ultimately responsible for. If you have or think you might have any concerns in this regard, please contact Gary Lee at firstname.lastname@example.org.