Legal background
In order for an individual to establish that they have been discriminated against on a particular ground, for instance their sex, they do not have to show that this ground was the exclusive or even main reason for the treatment. Rather they have to show that it was a partial cause of the treatment. So, it is possible for a single act to amount to discrimination on more than one ground, for instance sex and race or religion and disability.
Where the same act is caused by more than one type of discrimination, a tribunal can make a ‘global’ injury to feelings award – without separating out how much is attributed to each type of discrimination.
The EAT considered what happens where there are a series of unlawful discriminatory acts, some of which relate to one type of discrimination and some to another in Jumard v Clwyd Leisure Ltd.
Facts of the case
In this case, the claimant was an Iraqi by birth and suffered from a hip disability. The tribunal found that he had been subjected to race discrimination, disability discrimination and victimisation. Some of the acts complained of amounted to both race and disability discrimination, but some consisted of just race discrimination or just disability discrimination.
What’s the right approach?
The EAT made the following points:
- Where more than one type of discrimination arises out of the same set of facts, then it is artificial to break down an award for injury to feelings, allocating part of it to each type of discrimination.
- However, where certain acts of discrimination fall into one category of discrimination or another, then compensation for injury to feelings should be considered separately for each incident of discrimination.
- The level of awards might not be the same for different forms of discrimination. For example, it is possible that a deliberate act of race discrimination would cause a greater injury to feelings than a thoughtless failure to make a reasonable adjustment.
- Where victimisation is established as well as other discrimination claims, then the tribunal should consider whether to make a separate award for injury to feelings for the act of victimisation.
- At the end of the exercise, tribunals should stand back and look at the overall sum to ensure that it is proportionate and that there is no double counting.
Comment
This will not always mean that an employee who establishes more than one sort of discrimination will get more compensation for injury to feelings – but it will affect the way tribunals have to approach compensation in such cases.
Where different facts give rise to more than one type of discrimination, then tribunals will have to consider whether injury to feelings awards should be made separately.