EAT Sex Discrimination – Injury to feelings
Other Losses
Injury to feelings award of andpound;10,000 manifestly too high. Award of andpound;6,600 substituted.
Having found sexual harassment and direct sex discrimination, the Employment Tribunal had erred in assessing the level of award appropriate for compensating injury to feelings.
The focus of the Tribunal had been on the acts of discrimination and what it considered to be the Respondent’s failure to respond to the Claimant’s grievance. The Tribunal had not found the latter to be an act of discrimination and had rejected any claim for aggravated damages; in those circumstances it provided no basis for an award of compensation.
The Tribunal failed to focus on the actual injury suffered by the Claimant. Had it done so, it would have been bound – by its own findings of fact – to have categorised this case as falling within the lower of the Vento bands.
As no higher award would be possible on the Tribunal’s findings of fact and as the Respondent was prepared to agree an award at the top end of that band (with a 10% uplift, following Simmons v Castle [2012] EWCA Civ 1039), the Court considered it was able to substitute an award of andpound;6,600 for the original award of andpound;10,000.
ACAS UPLIFT
The Employment Judge had given the Tribunal’s Judgment on this issue orally at the end of the Hearing, when it was held that the Claimant had not made any written grievance such as to engage the provisions of the Acas Code on Discipline and Grievance 2009. That being so, it was not open to the Tribunal to subsequently change its substantive finding of fact in that regard in its written reasons, particularly as the parties had not been forewarned of this alteration or given the opportunity to make representations thereon. Given the apparent finding of fact in the Tribunal’s oral Judgment, there was no basis for the 25% uplift and this part of the Tribunal’s award would be quashed.
Easy QC J
[2014] UKEAT 0001 – 14 – 1505
Bailii
England and Wales
Discrimination, Damages
Updated: 20 December 2021; Ref: scu.535994