Fair Employment Tribunal cannot make separate award for aggravated damages

Joan Baird (applicant/ respondent) v Cookstown District Council (respondent/ appellant).

Employment - Discrimination in arrangements made for the purpose of determining who should be offered employment - presumption of discrimination - Compensation - Award of compensation for injury to feelings - Award for aggravation of injury to feelings - Principles to be applied by tribunal in stating case - Fair Employment (Northern Ireland) Act 1976.

In Her Majesty's Court of Appeal in Northern Ireland (the Lord Chief Justice Sir Robert Carswell, Lord Justice McCollum and Mr Justice Kerr); judgment delivered 1 April 1998.

There will be a presumption of discrimination where an elimination vote, which is part of the arrangements made for the purpose of determining who should be offered employment, has a political or sectarian bias. An award for aggravated damages cannot be sustained as a separate head of compensation in addition to the award for injury to feelings under the Fair Employment (Northern Ireland) Act 1976 nor is there anything in the present case sufficient to increase the compensatory element of the award to reflect aggravating elements. The Court of Appeal so held in dismissing the appeal of Cookstown District Council on liability and allowing the appeal of the council on quantum against decisions of the Fair Employment Tribunal, whereby it had held that the council had discriminated against the respondent Miss Joan Baird in the arrangements which it made for the purpose of determining who should be offered employment with it and had made an award in her favour totalling £31,325.

Donnell Deeny QC and Stephen Elliott BL for the (respondent/ appellant); Nicholas Hanna QC and John O'Hara BL for the (applicant/ respondent).

The Lord Chief Justice stated that in 1991 Cookstown District Council advertised for applications for the post of clerk to the council and chief executive. The political affiliation of the councillors was as follows: 6 SDLP, 4 DUP, 3 UUP, 1 independent and 1 Sinn Fein. The individual councillors had mark sheets on which they were to record the score which they attributed to each candidate. At the conclusion of the initial interviews, 3 candidates were proposed and the councillors proceeded to vote on these. The respondent, Miss Baird (a Protestant) received 4 votes, all from the DUP councillors. Another candidate (also a Protestant) received 4 votes from the 3 UUP councillors and the independent councillor. A further candidate (a Roman Catholic) received 7 votes, being those of the 6 SDLP councillors and the Sinn Fein councillor. An elimination vote was then held between the two candidates who had each received 4 votes. On this vote the respondent received 7 votes, being the 4 DUP councillors, 2 SDLP councillors and the Sinn Fein councillor. The other candidate received 8 votes (3 UUP Councillors, the independent councillor and 4 of the SDLP councillors.) The respondent claimed she was discriminated against in the arrangements made for the purpose of determining who should be offered employment with the council, contrary to section 17(a)(i) of the Fair Employment (Northern Ireland) Act 1976. The Lord Chief Justice said that her complaint was directed towards the voting on the elimination round, and that its gravamen was that the councillors who supported the other Protestant candidate did so for reasons of religious belief or political opinion. The tribunal examined the merits of the respondent and the other Protestant candidate in some detail and concluded that the respondent was better qualified and better experienced. As between the respondent and the Roman Catholic candidate the tribunal was unable to determine whether it was more likely that the respondent would have been selected or not. In the first and third votes the councillors divided on strict party lines. The court considered that there was ample evidence that in their support of the candidates on those votes, councillors were influenced by religious or political reasons and that this was a proper case in which to apply the presumption of discrimination described by Mr Justice Browne-Wilkinson in Chattopadhay v Headmaster of Holloway School [1982] ICR 132, at page 137, where he stated that ". . . if an applicant shows that he has been treated less favourably than others in circumstances which are consistent with the treatment being based on racial grounds, the industrial tribunal should draw an inference that such treatment was on racial grounds, unless the respondent can satisfy the industrial tribunal that there is an innocent explanation . . . "

In the present case both the respondent and the other candidate in question were Protestants, and whilst there was no evidence of any political affiliation on the part of either which would, of itself, have given rise to the suspicion from which the presumption is arrived, there was a clear pattern in the first and third votes of what the tribunal described as a "party political vote with sectarian overtones". The tribunal rejected the explanation put forward by the appellant council that the vote was based on the merits of the respondent and the other Protestant candidate. Given the voting pattern on the first and third votes and the support given by the 3 SDLP councillors to the candidate whom they had assessed below the other on merit, there was, in the court's view, sufficient ground for the tribunal to do so. Once that explanation is rejected, and no other reason is put forward, the presumption has not been displaced and the influence upon which the respondent's case is based has been established. Turning to the issue of quantum, the Lord Chief Justice stated that in its decision given on 30 March 1994, the tribunal made an award in favour of the respondent totalling £31,325. It valued her chance of success in the final choice of a candidate for the post as 50 per cent. It accordingly decided to award for damages a sum equivalent to half the loss which she suffered on the assumption that she would have been successful (a total award for financial loss of £16,325). This part of the award was not challenged on the appeal to this court. The tribunal went on to award the respondent £7,500 for injury to feelings and a further £7,500 "in respect of the aggravation of that injury".

Referring to the previous decision of the court in McConnell v Police Authority for Northern Ireland [1997] NI 244, the Lord Chief Justice said that the award of aggravated damages could not be sustained as a separate head of compensation in addition to the reward for injury to feelings. The court then considered whether there were features in the case which should properly be taken into account in assessing the injury to the respondent's feelings and whether the global sum of £15,000 was justifiable as an award for that injury, including any element of aggravation. The Lord Chief Justice said that there was nothing in the facts of the case to find any suggestion that the appellant council acted in a high handed, malicious, insulting or oppressive manner in committing the act of discrimination. He stated that the fact that the discriminating body was a public authority was not of itself a sustainable ground for increasing the compensation for injury to the complainant's feelings. Nor did the court consider that the fact that the respondent was a professional public servant with "years of study, professionalism and dedication" behind her was a factor which should properly be regarded as an aggravating factor, capable of increasing the compensation.

In each of the two rounds in which the respondent's candidature was considered 4 DUP members voted en bloc for her, so giving rise to the possible conclusion that she was a member or an adherent to that party. The respondent indignantly disclaimed any connection with that party and apparently expressed distress that she had been associated with it in the public mind. The court did not consider that this ground of complaint could be sustained. Had the councillors voted solely on merit, the respondent might have obtained the support of some or all of the members of this or some other party which drew its support from one side of the community. The Lord Chief Justice stated that this was one of the hazards to be endured by all candidates for public appointments made by elected councillors. The injury to the respondent's feelings must be attributable to an act of discrimination and this injury to the respondent's feelings was not. The Court concluded that none of the matters set out by the tribunal in the case stated were sufficient to constitute aggravating elements, and that the tribunal was in error in so regarding them.

The tribunal stated that it had assessed the compensation in the light of previous awards made by it in fair employment cases and the Lord Chief Justice said that it was apparent from previous decisions, that it had hitherto adopted the approach that discrimination based on religious belief or political opinion should entitled the complainant to a higher reward than discrimination on grounds of race or sex. For the reasons set out in McConnell v Police Authority for Northern Ireland, however, the court considered that the injury to feelings in religious or political discrimination cases should be equated with that in cases of discrimination on grounds of race or sex and that the level of awards in each type of case should be broadly comparable. The court was reluctant to set firm guidelines in this class of case. The Lord Chief Justice, however, stated that for a straightforward case where the complainant had been deprived of an appointment because of discrimination on grounds of religious belief or political opinion, in the absence of features which could properly be regarded as aggravating the feeling of injury, the sum of £5,000 was a useful bench mark. In place of the two awards of £7,500 the court substituted a single figure of £5,000 for the injury to respondent's feelings. The respondent's total compensation accordingly was reduced from £31,325 to £21,325.

Solicitors: J. B. R. H. Twigg (Cookstown) for the respondent/ appellant; Culbert & Martin (Belfast) for the applicant/ respondent.