Damages for Psychiatric Injury - the Approach Under the Discrimination Statutes

In this article we consider the decision of the Employment Appeal Tribunal in the case of Y Essa v Laing Limited - E80/0697/01 - 17th February 2003.

The facts

Mr Essa, the Appellant, was an amateur boxer who had represented Wales on a number of occasions. In order to maintain himself financially he worked as a labourer and construction worker. During 1999 he was contracted to Laing to work on the construction of the Millennium Stadium. As soon as he commenced work on site Mr Essa began to suffer petty acts of humiliation and insults. On the 28th July 1999 an employee of Laing, a foreman, said in reference to Mr Essa in front of a number of colleagues "make sure that black cÖt does not wander off". Mr Essa complained to Laing about this but considered that his complaint was not taken seriously and consequently he left the site. A formal written warning was issued during a disciplinary hearing at which Mr Essa was not present.

It was Mr Essa's case that the foreman's abuse had upset him to the extent that it affected his health and caused him to suffer depression and consequently his boxing career was affected. He claimed that Laing, as the foreman's employer, did not take steps as were reasonably practicable to prevent the foreman from acting in an abusive manner under Section 32(3) of the Race Relations Action 1976. The Tribunal at first instance found that there had been discrimination on the grounds of race and that following the incident of the 28th July Mr Essa did suffer with extreme depression.

Insofar as quantum was concerned, the Employment Tribunal noted "in calculating special damages we bear in mind that the Respondents are only liable for such reasonably foreseeable losses as were directly caused by the discriminating act". The Tribunal did not consider that Laing could have foreseen the extent of Mr Essa's reaction to the discriminatory comments. They found that his reaction was "so extreme so as to have been irrational". The Tribunal noted that Mr Essa did not take positive steps to improve his condition and indeed, "took himself off medication prescribed by the doctor after only 2 weeks and did not seriously seek counselling as suggested by the doctor until 6 months had gone by, thus allowing more time for the wound to fester".

The appeal

Mr Essa appealed the decision as to quantum. The question before the Tribunal was whether Mr Essa, the victim of discrimination on grounds of race, could recover compensation for losses...