Discrimination damages

On appeal, a female claimant of mixed race, was awarded damages after being subjected to racial discrimination by police officers during her detention…

Bianca Durrant v Chief Constable of Avon & Somerset Constabulary
Court of Appeal (Sales LJ and Moylan LJ)
14 November 2017

Executive summary

On appeal, the claimant, a female of mixed race, was awarded £14,000 in damages after being subjected to racial discrimination by police officers during her detention in police custody following her arrest on suspicion of a public order offence and assault in June 2009.

The claimant was humiliated by a significant delay in allowing her to go to the toilet. This resulted in her urinating on the floor of the holding cell in front of a group of male officers.

The award also included an uplift to take into account the long complaint investigation and litigation process which the claimant had to pursue in order to obtain vindication.

Background

At first instance the judge found that there had been two acts of unlawful discrimination in relation to the claimant. The first finding of discrimination was that the police had focussed on arresting the claimant before arresting two white people in respect of the same incident. The second finding was that, following her arrest, the police had handcuffed her hands behind her back before placing her in a police van. On appeal she contended that further findings of discrimination should have been made and that the damages of £4,950 awarded by the first instance judge were too low.

Since the incident took place, the Equality Act 2010 had come into force. The judge was therefore required to apply the law on race discrimination as set out in the Race Relations Act 1976 (as amended) (“the Act”). Section 57 of the Act covers alleged discrimination by the police in carrying out their functions. Section 1(1)(a) of the Act defines racial discrimination as: "a person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if – (a) on racial grounds he treats that other less favourably than he treats or would treat other persons."

Decision

On appeal, the court found a third act of racial discrimination in relation to the claimant being denied the use of the toilet at the police station. It was therefore necessary to reconsider the amount of compensation to reflect the changed overall picture of discriminatory conduct.

The three incidents of discrimination all occurred within a few hours of each other and all related to the claimant’s arrest and detention.

The case did not fall within the upper Vento band as the behaviour was not deemed to be race discrimination of the most serious kind. The discrimination had arisen as a result of unconscious racial bias. The damages figure had been reached using the latest figures for the Vento bracket as set out in the Presidential Guidance issued on 4 September 2017: "Employment Tribunal awards for injury to feelings and psychiatric injury ". Within this bracket, the case fell towards the lower end of the revised middle band (£8,400 to £25,200) and £14,000 was held to be just and equitable in all the circumstances.

The upset and humiliation caused by having to urinate in front of male officers was particularly significant. In addition, the complaint process and the litigation had taken a long time. It was appropriate to allow some uplift to the amount of compensation to reflect the time and effort required for the appellant to achieve vindication and to allow for the effect of interest.

The court observed that it was not appropriate to award aggravated damages. The damages awarded already took account of the humiliating circumstances of the claimant’s treatment and the distress suffered as a result of the discrimination. There was nothing about the manner in which the acts were committed which aggravated matters. The court stated that the unlawful conduct was not accompanied by goading, lewd comments or abuse, such as might have made an award of aggravated damages appropriate. In relation to police conduct following the incident, the first instance judge had found the police inquiries to have been lawful and proper.

Exemplary damages were also not appropriate. They were designed to punish oppressive or arbitrary behaviour. The police conduct had not been motivated by deliberate racial prejudice and the police investigations had been appropriate and properly motivated.

Comment

The Court of Appeal considered all three incidents of discrimination in the round and awarded one single overall figure, taking into account the latest Vento figures. It was also appropriate to take into account the impact of the complaint investigation and litigation on the claimant.

For further information or to discuss any of the issues in this update, please contact Rose Silvester, Associate on 0151 242 6814 or email rose.silvester@weightmans.com.

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