EAT Harassment – SEX DISCRIMINATION – Injury to feelings
SEX DISCRIMINATION – Other losses
The Claimant resigned from the Respondent company and was found by the Employment Tribunal to have been constructively dismissed as the result of three acts of harassment related to her sex. She succeeded in her claim, including claims for unfair dismissal and harassment. There was no appeal against the finding of unfair dismissal but the Respondent did appeal against the finding of unlawful harassment. In addition, the Respondent appealed against the finding that the act of constructive dismissal was in itself an act of harassment.
In a later Remedy Judgment, the Tribunal made various awards to the Claimant, including an award of andpound;10,000 for injury to feelings, which it grossed up on the understanding that it would be liable to income tax. The Respondent appealed against that decision on the ground that such an award is not liable to tax.
The Tribunal dismissed her claim for compensation for loss of a chance: the Claimant had claimed that she would have acquired equity in the Respondent company and that she had lost several hundreds of thousands of pounds as a consequence of her dismissal. The Claimant appealed against that aspect of the Remedy Judgment.
Held:
(1) The Respondent’s appeal against the finding of harassment would be dismissed. The finding that the acts of harassment were related to sex was one of fact which the Tribunal was entitled to reach on the evidence before it.
(2) The Respondent’s appeal against the finding that the constructive dismissal was in itself an act of harassment would be allowed and a finding substituted that it was not an act of harassment. On the true construction of the Equality Act 2010 a resignation which amounts to a constructive dismissal does not fall within the meaning of harassment.
(3) The Respondent’s appeal against the award of compensation for injury to feelings would be allowed and the award reduced to the sum of andpound;10,000. On the true construction of the Income Tax (Earnings and Pensions) Act 2003 such an award is not liable to income tax. The earlier decision of the Employment Appeal Tribunal in Orthet Ltd v Vince-Cain [2005] ICR 324 would be followed in this regard, in preference to contrary decisions of lower tribunals dealing with tax appeals.
(4) The Claimant’s appeal against the Remedy Judgment would be dismissed. The Employment Tribunal had correctly understood the law on loss of a chance and applied it to the facts of the case in a way which was open to it on the evidence before it.
Singh J
[2015] UKEAT 0082 – 14 – 0503, [2015] IRLR 368, [2015] ICR 764
Bailii
Equality Act 2010, Income Tax (Earnings and Pensions) Act 2003
England and Wales
Citing:
Cited – Orthet Ltd v Vince-Cain EAT 12-Aug-2004
EAT Sex discrimination: compensation – An award of compensation for injury to feelings, pursuant to a finding of unlawful discrimination on the grounds of gender or victimisation is to be made without reference . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination, Damages, Income Tax
Updated: 10 November 2021; Ref: scu.543903
