Chagger v Abbey National Plc and Another: CA 13 Nov 2009

The claimant appealed against the limitation of 2% placed on the uplift of his award of damages for having failed to comply with relevant dispute procedures. The tribunal had found exceptional reasons for reducing the uplift given the size of the award, and that the claim arise from a procedural failure.
Held: The EAT had been correct. It is necessary to ask what would have occurred had there been no unlawful discrimination. If there were a chance that dismissal would have occurred in any event, even had there been no discrimination, then in the normal way that must be factored into the calculation of loss.
The EAT had awarded no stigma loss. This was incorrect. As to the length of time he might have continued to work for the defendant: ‘the proper assessment of loss is therefore to be determined by asking when Mr Chagger might expect to obtain another job on an equivalent salary to his Abbey salary. His loss is fixed by that period. Whether that is shorter than the period he would have served with Abbey, or whether it is longer and includes time when, but for the discriminatory dismissal he would have been employed elsewhere, is immaterial.’ In view of the reduction in the overall level of damages, it was not necessary to limit the uplift in the way suggested.
The size of the award could be an ‘exceptional circumstance’ within the meaning of subsection (4). Elias LJ said: ‘Parliament would not have intended the sums awarded to be wholly disproportionate to the nature of the breach’.

Smith, Rimer, Elias LJJ
[2009] EWCA Civ 1202, [2010] ICR 397, [2010] IRLR 47
Employment Act 2002 31, Race Relations Act 1976 54
England and Wales
Appeal fromAbbey National Plc and Another v Chagger EAT 16-Oct-2008
EAT RACE DISCRIMINATION: Direct / Burden of proof / Other losses
C, aged 40, . .
CitedLivingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
CitedM H Marshall v Southampton And South West Hampshire Area Health Authority (Teaching) ECJ 26-Feb-1986
ECJ The court considered the measure of compensation in a successful claim for sex discrimination arising from the health authority’s provision of an earlier compulsory retirement age for women compared with that . .
CitedPolkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
CitedLaing Limited v Yassin Essa CA 21-Jan-2004
The claimant had been awarded damages for race discrimination. The employer appealed.
Held: In a claim for damages under the 1976 Act, it was not necessary to show that the damage suffered was reasonably forseeable.
Pill LJ said: ‘I see . .
CitedMalik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
CitedAllied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
CitedMinistry of Defence v Cannock and Others EAT 2-Aug-1994
Compensation awarded for a pregnancy dismissal was to assume that the worker would ready to work again after six months. Review and guidelines of damages for unfair dismissal for pregnancy. The hypothetical question requires careful thought before . .
CitedVento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .

Cited by:
DistinguishedBrown v J and J Baxter (T/A Careham Hall) EAT 7-Jul-2010
This was an appeal by the Claimant against the ET’s decision on amount of compensation for her automatically unfair dismissal. The Claimant advanced two grounds. Firstly, . .
CitedWardle v Credit Agricole Corporate and Investment Bank CA 11-May-2011
The claimant had been found to have been unlawfully dismissed and to have suffered nationality discrimination. Each party appealed against aspects of the compensatory award including the application of the statutory uplift, and the calculation of . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Damages

Updated: 02 November 2021; Ref: scu.377909