Barato De Oliveira v Zio Mediterranean Ltd & Ors [2015] NIIT 01334_15IT (08 December 2015)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Industrial Tribunals Northern Ireland Decisions You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Barato De Oliveira v Zio Mediterranean Ltd & Ors [2015] NIIT 01334_15IT (08 December 2015) URL: https://www.bailii.org/nie/cases/NIIT/2015/01334_15IT.html Cite as: [2015] NIIT 01334_15IT, [2015] NIIT 1334_15IT [ New search ] [ Printable RTF version ] [ Help ] THE INDUSTRIAL TRIBUNALS CASE REFS: 1050/14 2443/14 CLAIMANT: Rebecca Downie RESPONDENTS: 1. Department for Social Development 2. Jenny Mullan 3. Deborah Daly 4. Gary Craig DECISION ON A REVIEW The decision of the tribunal is set out in this decision. Constitution of Tribunal: Employment Judge: Employment Judge Greene Members: Mr B Hanna Mr H Stevenson Appearances: The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Worthingtons, Solicitors. The respondents were represented by Mr J Kennedy, Barrister-at-Law, instructed by The Departmental Solicitor's Office. 1. On 2 October 2015 the industrial tribunal issued a decision in which it found that the first respondent had failed to make reasonable adjustments for the claimant and that the first respondent had victimised the claimant pursuant to Section 55 of the Disability Discrimination Act 1995, as amended and the tribunal awarded the claimant compensation in the sum of £10,000.00. 2. Attached to the decision was the interest notice which set out what interest was due and it indicated that any interest due would only arise after the calculation day of 2 October 2015. 3. The parties had agreed and the tribunal had accepted, prior to the issuing of its decision, that anonymity should be given to all the comparators referred to by the parties in the course of the hearing and who figured in the decision of the tribunal. 4. By letter of 14 October 2015 the claimant's solicitor sought a review of the tribunal's decision pursuant to Schedule 1 Rule 34 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 as they sought clarification from the tribunal in relation to the date from which interest should run pursuant to the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996. 5. The letter also indicated that some of the statements contained in the decision could enable some of the comparators to be identified and the claimant's solicitors sought, pursuant to Schedule 1 Rule 37 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, 'the slip rule' that those relevant portions should be deleted from the decision and anonymity granted, as necessary. 6. By letter of 15 October 2015 the respondents' solicitor indicated that in their view the date from when interest runs from was clear, as set out in the decision, 2 October 2015. They also indicated that they agreed with the claimant's solicitor's application that those statements within the decision from which the comparators could be identified should be removed from the decision. The review came on for hearing on 30 November 2015. 7. At the review hearing the parties were agreed that those statements within the decision from which the comparators could be identified should be removed pursuant to 'the slip rule' in keeping with the direction of the tribunal given in the course of the hearing that anonymity of the comparators would be granted by way of relevant amendment. 8. The tribunal accepted those amendments and accordingly it amended Paragraphs 4(98), (103) and 6(3) of its decision. 9. The parties were agreed that this matter could be resolved by use of 'the slip rule', under Rule 37 of the 2005 Rules. The Employment Judge so certifies and the tribunal amends the decision issued on 2 October 2015 accordingly. Consequently the decision, dated 2 October 2015, that will appear on the Register will be the amended decision thereby preserving the anonymity granted. 10. On behalf of the respondents, Mr Kennedy made a number of submissions in relation to the issue about when interest should be calculated:- (1) That the recoupment notice stated that the interest should only run from 2 October 2015 and that therefore the tribunal has dealt with that and that is the applicable date for running of the interest. (2) In the alternative, that the tribunal purported to give an award of £10,000.00 and that should be viewed as £10,000.00 inclusive of any interest due if his first submission were not accepted. (3) However, if his second submission was not accepted and the tribunal was minded to award interest. Mr Kennedy said that the parties were agreed that the operative date for interest arising from the first respondent's failure to make reasonable adjustments is 3 February 2014 and that the date from which the victimisation occurred was 5 September 2014. Consequently if the tribunal was minded to make an award he submitted that the tribunal should apportion the damages as between the two types of disability discrimination arising on different dates and then apply the interest provision to that amount running from the appropriate date. 11. Mr Grainger, for the claimant, made the following submissions:- (1) The Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 was designed to award interest to a victim of discrimination prior to the date of determination of the tribunal where the tribunal found that discrimination had occurred. (2) That the tribunal intended to make an award of £10,000.00 plus interest and that would be the effect of having declared in its decision that it was making an award of £10,000.00 plus interest and stating that the 1996 Regulations were relevant. (3) That if Mr Kennedy's submissions were accepted and the £10,000.00 was regarded as a global figure inclusive of interest then that was in effect a reduction in the award being made by the tribunal and the respondents had not formally made that application. (4) That Harvey on Industrial Relations and Employment Law, P1 [1130] to [1133] suggested that it was not appropriate to make an apportionment where discrimination had been found and therefore he opposed any attempt by the tribunal to apportion as between the different types of disability discrimination found by it for the purposes of calculating the interest. He suggested that once disability discrimination had been found and the tribunal had exercised its discretion to award interest that such interest was awarded from the date that the first act of disability discrimination occurred. The law 12. The award of interest in discrimination cases is covered by the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 ('the 1996 Regulations'). 13. The 1996 Regulations require a tribunal to consider whether to include interest on an award for injury to feelings irrespective of whether such an application has been made by the parties (Regulation 3(1)(b)). However, the tribunal on consideration may exercise its discretion not to award interest (Regulation 3(1)(a)). The rate of interest is that which is applicable in the County Court (Regulation 4). For the purposes of a injury to feelings award the award of interest ends on the day of calculation, 2 October 2015 (Regulation 5(1)). The period for calculation of the interest on an award for injury to feelings begins on the day of the contravention or act of discrimination to which the award relates (Regulation 5(2)). If the tribunal is of the opinion that serious injustice would be caused by calculating the interest by reference to that period then it may calculate the interest for such different period as it considers appropriate (Regulation 7(3)). A tribunal's written statement of reasons for its decision, where it makes an award of interest, must contain a statement of the total amount of any interest included and how its calculation has been made (Regulation 8(1)). If a tribunal decides not to award interest then it is required to state the reasons for not awarding interest (Regulation 8(2)). 14. The power to award interest under the Regulations is discretionary, though if a tribunal decides not to make an award, it must give reasons for its decision not to do so ... . But the discretion relates only to the decision whether or not to award interest at all; if it decides to make an award, there is no discretion as to the manner in which it is to be calculated nor (save in exceptional circumstances) the period for which it shall be awarded. The tribunal must, however, consider whether to make an award, even in the absence of a formal application ... . There is nothing to prevent it making an award in terms agreed between the parties ... . ( Harvey on Industrial Relations and Employment Law, P1, [1130] .) 15. Where interest is awarded, it will be calculated as simple interest accruing from day to day ... . [Regulation 4(1).] ( Harvey on Industrial Relations and Employment Law, P1, [1131] .) 16. In the decision of Derby Specialist Fabrication Ltd v Burton [2001] IRLR 69 EAT , Keene J stated at Paragraph 39 and 40 :- "It is clear that Parliament intended that, unlike interest on other awards where the midpoint was to be taken, interest on an award for injury to feelings should normally be from the date of the discriminatory act. That must be taken to allow for the fact, of which Parliament cannot have been ignorant, that the injury to feelings is not a one-off event but something which will often persist over a period of time. So the mere fact that any award for such injury to feelings reflects injury occurring over a period of time cannot of itself justify a departure from the normal Rule in [Regulation 7(1)(a)]. Parliament has clearly chosen to depart from the normal approach to interest awards in personal injury cases involving pain, suffering and loss of amenity. ... Thus the point becomes whether the tribunal's reference to the injury becoming more severe during May and June 1998, a factor presumably reflected in the £5,000.00, required the tribunal in its discretion under [Regulation 7(3)] to depart from the normal Rule because serious injustice would result from doing otherwise. Had it stood alone, this argument might have succeeded. But the tribunal also found that the injury to feelings had diminished between then and its decision in July 1999. So the tribunal is faced with a variation first up and then down in the gravity of the injury to the respondent's feelings." Conclusions 17. The tribunal accepts that it is appropriate for it to provide clarification of its award of £10,000.00 for personal injury sustained by the claimant where it indicated that the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 applied. 18. The tribunal intended to award interest in relation to the failure by the first respondent to make reasonable adjustments for the claimant and victimisation of her by virtue of the Disability Discrimination Act 1995 as amended. 19. It was the tribunal's intention to make an award of £10,000.00 plus interest and nothing has been said to the tribunal in the course of the review hearing that would require it to reduce the award. The respondents did not seek a review on the ground that the award of £10,000.000 for the injury to feelings received by the claimant was excessive and therefore should be reduced rather they argue that £10,000.00 represented an award inclusive of interest. 20. Mr Kennedy did not advance an argument or reasons to suggest that should an award of £10,000.00 plus interest be made that such would cause serious injustice to the respondents and therefore that is not a factor in the decision. 21. Whilst there was some logic in the submissions made by Mr Kennedy, that the discrimination comprising two different types of disability discrimination should cause the tribunal to apportion the interest according to what amount the tribunal made for each element of the discrimination and from the different dates that they arose, the tribunal is not persuaded by such an application. It seems to the tribunal that in view of the comments in Harvey , cited above, and the decision in Derby Specialist Fabrication Ltd that the norm should be to award interest on the compensation from the date that the discrimination began as Harvey and the decision in Derby Specialist Fabrication Ltd both seem to be conscious that the discrimination can run over a period of time with highs and lows within that period but such should be looked at in the round. 22. Accordingly, the original decision is varied on review by saying that it awards interest on the £10,000.00 for injury to feelings, such interest to run from 3 February 2014 until the calculation day, which is 2 October 2015. That interest is simple interest calculated at 8% per annum. The tribunal calculates the appropriate interest to be £1,328.00 (£10,000.00 x 1.66 x 8 ÷ 100). 23. Therefore the award being made by the tribunal to the claimant for her injury to feelings is £10,000.00 plus interest of £1,328.00. 24. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990. Employment Judge Date and place of hearing: 30 November 2015, at Belfast Date decision recorded in register and issued to parties: BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/nie/cases/NIIT/2015/01334_15IT.html