Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] IRLR 481 Court of Appeal
Can an applicant in a Race case in an Employment Tribunal recover compensation for personal injury as well as any injury to feelings? If a claim in an Employment Tribunal is settled with payment being made to cover injury to feelings can an applicant subsequently start a personal injury action in a County Court?
Mr Sheriff was employed as a second engineer. He alleged that during the course of his employment he suffered racial harassment, abuse, intimidation and bullying by the ship's master. As a result of the abuse he suffered a nervous breakdown and was later dismissed. He brought an Employment Tribunal claim which was settled, the terms of settlement were recorded in an agreement and he received £4,000 compensation. The agreement was said to be "in full and final settlement of all claims which he has or may have against the respondent arising out of his employment".
Mr Sheriff later issued a summons in the County Court claiming damages for personal injury. The details given of the treatment he had received from the master were almost the same as on his Employment Tribunal claim. A medical report gave details of the post traumatic stress disorder he had suffered. His summons was struck out as an abuse of process on the grounds that the claim was in breach of the agreement which settled the Employment Tribunal claim.
The Race Relations Act 1976 creates a "statutory tort" to unlawfully discriminate on the grounds of race. Section 57 (4) of the Act states "For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head". The Court of Appeal say that the language is clear and the principle must be that the claimant is entitled to be compensated for the loss and damage actually sustained as a result of the statutory tort.
The Court of Appeal said that the Employment Tribunal does have the jurisdiction to award damages for the tort of racial discrimination, including damages for personal injury both physical and psychiatric, caused by the tort. The same is also true for disability and sex discrimination claims. Here Mr Sheriff was not able to pursue his County Court action due to the terms on which he settled his Employment Tribunal claim and that he could have been compensated for his personal injury in that case.
The Court of Appeal say it is important to take care where a claim to an employment tribunal includes, or might include, injury to health and injury to feelings. A medical report may need to be obtained.
Advisors should be careful when settling employment tribunal claims to consider potential personal injuries complaints arising out of the same complaint and not under-settle employment claims. It may be more straightforward to obtain damages for personal injury in an employment tribunal compared with a County Court, as in the latter the claimant will have to prove that it was reasonably foreseeable to an reasonable employer that the behaviour will cause an injury. In the employment tribunal the applicant will have to show the behaviour caused the injury, a lower hurdle.
The standard exclusion in Compromise Agreements and COT3s excluding personal injury claims may not be sufficient to entitle applicants who claims for sex and race discrimination are settled to pursue subsequent personal injury actions.