Practice and Procedure

JIAD v BYFORD & ORS (2003)

PUBLISHED January 30, 2003

In a claim for racial discrimination transitory hurt feelings may not, but psychological injury could be capable of constituting detriment because the reasonable worker would regard himself as being at a disadvantage.Applicant's appeal from the decision of the Employment Appeal Tribunal ('EAT') of 22 April 2002 to dismiss his appeal from the decision of the employment tribunal ('the tribunal') to strike out his originating application claiming racial discrimination and victimisation and order costs against him. The applicant ('J'), who was the only Iraqi employed by the BBC, alleged that in February 2000 he had been harassed and bullied by a solicitor ('Y') employed in the BBC's litigation department who had dealt with two previous unsuccessful claims made by J. J wrote to a manager ('B') requesting protection from the harassment and bullying, which he said was causing him psychological stress and humiliation. B passed J's complaint to a human resources manager ('G') who corresponded with J. J copied all correspondence to the Director General of the BBC ('D'). The four respondents, B, Y, G and D, applied for the originating application to be struck out. The tribunal granted the application on the basis that J had acted vexatiously in bringing the claim, which was without merit as the alleged detriment was tenuous and did not amount to detriment, and as J had not shown a comparator of a different race who had been treated more favourably. The EAT held that whatever the nature of the claim against Y, the tribunal was entirely justified in striking out the claim against B, G and D, which was essentially based on their failure to investigate J's complaint, and that there was no arguable case of detriment suffered as a result of Y's actions. J argued that his claim should not have been struck out because: (i) bullying on racial grounds causing humiliation or embarrassment was capable of amounting to detriment; (ii) there was more than mere disadvantage because J had suffered psychological injury; and (iii) the tribunal had not contemplated the possibility of a hypothetical comparator.HELD: (1) The cases against B, G and D were bound to fail. Each individual had done no more than forward or receive correspondence, or written letters in response. (2) The claim against Y was not bound to fail for want of a comparator, actual or hypothetical. (3) Transitory hurt feelings may not, but psychological injury could be capable of constituting detriment because the reasonable worker would regard himself as being at a disadvantage. The tribunal was wrong to strike out the claim against Y. (4) (per Peter Gibson LJ) It was clear that detriment was to be given a wide meaning, and meant no more than to be put under a disadvantage. A trivial disadvantage would not suffice. This court doubted whether it was necessary that there should be psychical or economic consequences. The specific linkage in Lord Hoffmann's speech in Chief Constable of West Yorkshire Police & Ors v Mr R Kahn (2001) 1 WLR 1947 between detriment and the ability of the tribunal to award compensation for injury to feelings was a pointer that it was not necessary to find physical or economic consequences for there to be detriment.Appeal allowed. Matter remitted.

[2003] EWCA Civ 135