Sexual orientation discrimination – victimisation
Sexual orientation discrimination – victimisation – unfair dismissal – compensation
Practice and procedure – costs
Having upheld the Claimant’s claims of direct sexual orientation discrimination, of harassment related to sexual orientation, of victimisation and of unfair dismissal, the Employment Tribunal (‘ET’) went on to assess compensation on a career-loss basis, calculated using a base salary that adopted an average of the competing pay figures used by the parties, and to award a 20% uplift for the Respondent’s failure to comply with the ACAS Code on Discipline and Grievance (‘the Code’) pursuant to section 207A Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’). Separately, the ET ordered the Respondent to pay one-third of the Claimant’s total costs, notwithstanding an earlier costs award in respect of the Respondent’s unreasonable conduct which the ET had assessed as having given rise to four days of additional costs.
The Respondent appealed against the ET’s Remedy Judgment on the basis that it had been wrong/had reached a perverse decision in awarding compensation on a career-loss basis and had failed to apply a correct discount (Grounds 1 and 2); that it had erred in its approach/reached a perverse decision in its calculation of base salary (Grounds 3 and 4); and that it had failed to carry out the requisite assessment of the uplift awarded under section 207A TULRCA (Ground 5). It further appealed against the ET’s Costs Judgment as offending against the principles of res judicata given the earlier costs award it had made.
Held: upholding the appeals in part
As a result of the discriminatory treatment he had suffered, it was common ground that the Claimant suffered moderate PTSD, depression and symptoms of paranoia, presenting with various functional impairments as a result (which included finding it difficult to leave his house on some days, or to attend to his personal care, or interact with members of the public, as well as experiencing low mood and sleep disturbance). On the basis of the Claimant’s expert medical evidence, the ET had permissibly found that the Claimant’s condition was likely to be life-long. Adopting the approach laid down in Wardle v Credit Agricole Corporate and Investment Bank  ICR 1290, the ET concluded that it was very unlikely that the Claimant would ever be able to return to any work; on the basis of the ET’s findings, it was entitled to find that this was one of those rare cases where it would be appropriate to consider the Claimant’s future losses on a career-long basis. Equally, given its findings of fact, the ET had been entitled to apply only a 5% discount when assessing the likelihood of the Claimant choosing to leave his employment early or the possibility of his being able to return to some form of employment in the future. It had, however, erred in failing to take account of the more general uncertainties of life that might impact upon either the length of a person’s working life or even just the length of their working day and Grounds 1 and 2 of the appeal would be upheld on that basis.
As for the calculation of base salary, the parties had each relied on different years as representative of the Claimant’s earnings, taking into account overtime. The ET had permissibly calculated base salary on the average of the two years used by the parties; that broad-brush approach neither demonstrated an error of law nor gave rise to a perverse conclusion. Grounds 3 and 4 were dismissed.
In determining that an uplift of 20% should be awarded in respect of the Respondent’s failure to comply with the Code, the ET had not demonstrated that it had considered the absolute value of the award it was thus making; that was an error of law (Acetrip Ltd v Dogra, unreported, EAT (18 March 2019), UKEAT/0238/18,  UKEAT 0238 – 18 – 1803, and Banerjee v Royal Bank of Canada  ICR 359, EAT, followed). The ET’s reasoning needed to demonstrate that it had considered the totality of the award and that this was proportionate to the Respondent’s breach of the Code and to any harm suffered by the Claimant as a result (such that it was just and equitable to make an award of an uplift in that sum). Ground 5 of the appeal would therefore be allowed.
The Costs Appeal
At a relatively early stage of the liability hearing, the Claimant had made an application to strike out the Respondent’s response given its unreasonable conduct, in particular in relation to issues of disclosure; the Claimant reserved the right to apply for costs until the end of the hearing. The ET declined to strike out the response but determined that the Respondent’s conduct in relation to disclosure and witness availability had been unreasonable and that it was appropriate to make a costs order in this regard. The ET assessed that conduct as extending the hearing by four days and duly made an award in favour of the Claimant for the costs of those additional days.
After the promulgation of the ET’s Liability Judgment, the Claimant had made an application for the entire costs of the proceedings. The ET had granted this application but limited recovery to one-third of his costs. In so doing, the ET had again referred to the Respondent’s unreasonable conduct in relation to disclosure. To the extent that related to such conduct post-dating the first costs award, no objection could be taken. The ET’s reasoning suggested, however, that it also related to disclosure issues prior to its making the first costs award, thus re-opening an issue that had already been determined and exposing the Respondent to double jeopardy in respect of that conduct. On that basis, the Respondent’s appeal would be allowed. It was, however, not possible to simply limit the second costs order to one-third of the Claimant’s costs post-dating the first award; that would not take account of the other aspects of the Respondent’s unreasonable conduct that pre-dated the first costs order but had formed no part of the ET’s reasoning at that time, and might fail to properly represent the ET’s intentions, given that it had limited costs to one-third by adopting a broad-brush approach to this issue. Absent any agreement between the parties, the issue of costs would need to be remitted to the ET.
 UKEAT 0016 – 20 – 0607
England and Wales
Updated: 11 November 2021; Ref: scu.663597