Base Childrenswear Ltd v Otshudi: EAT 28 Feb 2019

RACE DISCRIMINATION – Injury to feelings
Race discrimination – injury to feelings and other (non-pecuniary) losses
The Claimant had pursued ET proceedings, complaining of various acts of harassment because of race in respect of six incidents during her employment and from the fact and manner of her dismissal. Finding that the claim in respect of matters arising during the course of the Claimant’s employment had been brought out of time, the ET upheld the Claimant’s complaint of racial harassment in respect of her dismissal. At the subsequent Remedies Hearing, the ET found that the Claimant’s injury to feelings fell to be considered within the middle of the middle Vento band and made an award of pounds 16,000 under this head. It separately considered her claim for aggravated damages, finding that the Respondent’s failure to respond to the Claimant’s grievance/appeal, its subsequent conduct of the ET litigation (its initial maintenance of the lie that she had been dismissed because of redundancy; its failure to respond to disclosure requests; its late alteration of its case to allege dismissal because of suspected theft) and its failure to apologise, had aggravated her injury to feelings, warranting an award of pounds 5,000 under this head. Having found that the Claimant had suffered medical depression for three months, the ET also made an award for personal injury in the sum of pounds 3,000. Standing back to consider the overall award made for non-pecuniary damages, the ET was satisfied that this was an appropriate sum. It then went on to make an uplift of 25% in respect of the Respondent’s breach of the ACAS Code given its failure to respond to the Claimant’s grievance/appeal.
The Respondent appealed, contending the awards made were manifestly excessive, the personal injury award failed to take into account the Claimant’s other complaints of discrimination (for which the Respondent had not been found liable) and the ET had double-counted the factors taken into account and/or had taken into account irrelevant factors.
Held: allowing the appeal in part
Injury to feelings
The fact that the ET’s finding of unlawful discrimination related to an isolated event – the Claimant’s dismissal – did not mean it was required to assess the award for injury to feelings as falling within the lowest Vento bracket: the question was what effect had the discriminatory act had on the Claimant? On the ET’s findings of fact in this case, it had permissibly concluded that this was a serious matter (something acknowledged by the Respondent) that gave rise to an injury to feelings award falling within the middle of the middle Vento bracket. Moreover, in reaching that decision, the ET had been careful not to double-count matters that it subsequently considered relevant to the question of aggravated damages, personal injury or any ACAS uplift. It had, further, not taken into account irrelevant factors when it referred to the Claimant’s grievance, her notification to ACAS or the pursuit of her ET proceedings; these were potentially relevant matters to which the ET was entitled to refer when testing whether the Claimant had genuinely been aggrieved by the Respondent’s discriminatory conduct. There was, therefore, no proper basis on which the EAT could interfere with the award made.
Aggravated damages
As for the aggravated damages award, other than a question as to whether this double-counted the Respondent’s failure to respond to the grievance/appeal (given the ET’s subsequent award of a 25% ACAS uplift), the ET’s reasoning made clear that it had been careful to have regard only to matters occurring after the dismissal, which had not been taken into account in assessing the initial injury to feelings suffered by the Claimant or her personal injury.
Personal injury
Similarly, when considering the claim in respect of personal injury, the ET had been astute not to allow double-recovery for factors already taken into account under other heads. As for the evidence supporting its award in this regard, the ET had noted that there was no basis for thinking that the other matters of which the Claimant had complained (for which the Respondent had not been held liable) had caused her to suffer depression; in the circumstances it had not erred in law in failing to apportion some element of the three-month period of medical depression to some other, earlier cause.
Standing back and considering the totality of the sums awarded, given the particular facts of this case (where the Claimant had, out of the blue, been summarily dismissed from a job in a career in which she had invested much in terms of time and money, for which she had worked hard and which she reasonably considered to be a long-term employment; where the reason for the dismissal had been an obvious lie; where the Claimant had faced managerial intimidation when she sought to contest the reason given for her dismissal), it could not be said that the award made was manifestly excessive such as to allow the EAT to interfere.
The only point on which a question of double-counting arose related to the regard given to the Respondent’s failure to respond to the Claimant’s grievance/appeal. Having already considered this relevant to the award for aggravated damages, the ET subsequently returned to the point when deciding whether it was appropriate to make an uplift of 25% for the Respondent’s breach of the ACAS Code. Although the Respondent had not appealed against the ACAS uplift, it had questioned the aggravated damages award in this respect. Given that the ET decided to make an ACAS uplift in respect of the grievance/appeal, the question whether this gave rise to double-recovery in relation to the aggravated damages award was a relevant matter that ought properly to have been considered by the ET. As the ET had failed to have regard to this issue, the appeal would be allowed to this limited extent.
The parties having consented to the EAT itself determining the question thus identified, further submissions were heard as to whether the ET’s award for aggravated damages should be reduced. Although, as the Claimant contended, it might be considered that the other matters taken into account under this head justified the sum awarded, it was apparent that the ET had also had regard to the failure to respond to the grievance/appeal and, as such, it was appropriate to reduce the award in this respect to avoid double-counting. Of the various factors that had led to the aggravated damages award, however, this was a relatively minor matter and the award would be reduced only by the sum of pounds 1,000.


[2019] UKEAT 0267 – 18 – 2802




England and Wales

Employment, Discrimination, Damages

Updated: 05 July 2022; Ref: scu.637640