Employment E-Missive No.11

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by Charles Price, LLB.(hons) LLM, barrister

Pendragon Chambers,

Swansea

SA1 5RG

Tel: (01792) 411188

Fax: (01792 411189

DX 39572, Swansea

www.charlesprice.net

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Charles Price practices in Respondent and Applicant work in England and
Wales. This e-mail is for academic purposes only.

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1)  Awards for 'injury to feelings' return for now as 'Dunnachie v Kingston
upon Hull City Council' is Overturned.
2)  Amending the IT1/IT3


Injury to feelings awards are back as the Court of Appeal today, overturned
the EAT's decision in Dunnachie v Kingston upon Hull City Council.
http://www.bailii.org.uk/ew/cases/EWCA/Civ/2004/84.html


Last year's EAT decision not to make awards for non pecuniary damage in
unfair dismissals  saw a substantial reduction in awards made in this type
of case. Today's Court of Appeal decision looks to reverse this position but
is not entirely without qualification.

Lord Justice Sedley stated in para. 48 that it would be erroneous to
consider that 'every upset caused by an unfair dismissal carries a
compensatory award. The power is there to permit tribunals to compensate an
employee for a real injury to his or her self-respect'. It is likely to
become material principally in cases of constructive dismissal where the
employee has been driven from his or her job. For the ordinary case of
unfair dismissal, assuming that there is no reinstatement or re-engagement,
it is the basic award which is there to compensate for the unfairness.


Lord Justice Sedley denied that employment tribunals were ill equiped to
handle complicated claims:

'A number of the arguments addressed to us have been arguments from
consequences. One is that employment tribunals are unequipped to adjudicate
on contests of psychiatric evidence. Another is that they lack the
procedural equipment to deal with conflicting expert testimony. These can at
best be secondary arguments, for if Parliament has given tribunals
jurisdiction to entertain particular matters, it is their obligation in
appropriate cases to do so'.

The 'injury to feelings' question threatens to rumble on as Lord Justice
Sedley referred to the division of opinion both within the Court of Appeal
as to the effect of Johnson v Unisys Ltd and between the Court of Appeal and
the EAT as to the sustainability of Norton Tool. He proposed, 'if asked and
if not dissuaded', to grant Hull City Council leave to appeal to the House
of Lords in order that a definitive answer can be given.

In Para 71, Mr Justice Evans-Lombe was clear in his support for Lord Justice
Sedley: 'I conclude that the Norton Tool case must be treated as wrongly
decided and that section 123(1) should be construed as empowering employment
tribunals to award compensation for non-pecuniary damage flowing from the
circumstances of unfair dismissal'.


2) Practice Matters - Amending the IT1/IT3
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This decision may well lead to a tide of applications for leave to amend
pleadings. The IT1 and IT3 together with any further particulars should be
made before the hearing proper begins. It is likely that a change in the
type of loss claimed will be deemed a straightforward technical amendment.
If the tribunal, however sees the amendment sought as 'substantial' then a
trial within a trial will take place with both sides making submissions.


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Charlie Price has held the positions of Head of Employment Law at both
Sheffield and Bristol City Councils and practises in employment and personal
injury law across England and Wales.
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