DISABILITY DISCRIMINATION – Compensation
DISABILITY DISCRIMINATION – Loss/mitigation
DISABILITY DISCRIMINATION – Burden of proof
The Law Reform (Contributory Negligence) Act 1945 can apply to some discrimination claims, but reduction of an award for contributory negligence would rarely, if ever, be justified because of the difficulties in applying the concept of ‘fault’ to the victim of a discrimination claim and the fact that the discriminator may have acted without ‘fault’ in the sense of the 1945 Act.
The obiter dictum in Way v Crouch [2005] ICR 1362, EAT at [11] that ‘compensation in a sex discrimination case (and by analogy in other discrimination claims) is subject to the [1945] Act’ is too broad. The essence of the right not to be discriminated against could be impaired by over-wide application of the 1945 Act. A contributory negligence argument in a discrimination claim may be more appropriately treated as an allegation of failure to mitigate loss.
The tribunal had not erred in its assessment of the quantum of non-financial loss (psychiatric injury and injury to feelings) for disability discrimination. The awards for injury to feelings and psychiatric damage were not flawed by misdirection in relation to causation of loss; nor were they perversely high or flawed by double counting.
The tribunal had rightly rejected the Claimant’s invitation to impose a financial penalty on the First Respondent under section 12A(1) of the Employment Rights Act 1996 for deliberate and repeated breaches of employment law.
The tribunal had also rightly rejected the invitation of the Claimant to award aggravated damages. The Appeal Tribunal shared the lack of enthusiasm for such awards expressed by the Appeal Tribunal in Commissioner of Police for the Metropolis v Shaw [2012] ICR 464.
Citations:
[2018] UKEAT 0056 – 18 – 0612
Links:
Statutes:
Law Reform (Contributory Negligence) Act 1945
Jurisdiction:
England and Wales
Employment, Discrimination, Damages
Updated: 11 June 2022; Ref: scu.635147
