Zaiwalla and Co (a Firm) v Walia: EAT 24 Jul 2002

The claimant sought aggravated damages for the aggressive way the respondent firm had defended her action for sex discrimination.
Held: In exceptional circumstances, and this was one, the tribunal could award additional damages where a respondent behaved in his defence in an over-enthusiastic way: ‘If a respondent misconducts himself in the defence of a discrimination case, it may amount to victimisation of the applicant in respect of the protected act of bringing the claim. It is easy to imagine cases in which the misconduct amounting to victimisation might only arise at a late stage of the proceedings, perhaps only during the hearing. It seems to us that it would be regrettable if such victimisation could only be compensated by the commencement of further proceedings.’ Generally a party should be warned in advance that this might be considered, and such awards should remain the exception.
The defendant said that the tribunal had not demonstrated its independence, but had restricted his cross examination of the claimant and had made many interruptions. The EAT found the allegation of bias unfounded.
Though there had been a delay of three months before promulgation of the decision, there was no reason to think that it was undermined. The defendant had not met the test for alleging perversity as set down in Yeboah.
‘overenthusiastic litigants and litigants in Employment Tribunals may be tempted to read our conclusions in a way which would give the green light to claims for aggravated damages in respect of alleged misconduct in the defence of proceedings almost as a matter of routine. They would be wrong to do so. ‘


Mr Justice Maurice Kay, Dr D. Grieves and Mr P. R. A. Jacques


Times 01-Aug-2002, EAT/827/00, EAT/451/00, [2002] IRLR 697




Sex Discrimination Act 1975 65


See AlsoZaiwalla and Co and Another v Walia EAT 16-Nov-2000
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See AlsoZaiwalla and Co and Another v Walia EAT 18-Sep-2001
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CitedHauschildt v Denmark ECHR 24-May-1989
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; . .
CitedNash v Chelsea College of Art and Design QBD 11-Jul-2001
A student’s appeal against her examination marking was heard, but the reasons were only given some months later.
Held: When looking to see whether those reasons should be admitted, a court should be careful before accepting late reasons, . .
AppliedYeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .
CitedArmitage Marsden and HM Prison Service v Johnson EAT 1997
The tribunal set out the relevant principles for assessing awards for injury to feelings for unlawful discrimination. The principles are: ‘(1) Awards for injury to feelings are compensatory. They should be just to both parties. They should . .
CitedThe Chief Constable of West Yorkshire Police v Vento EAT 4-Dec-2001
EAT Sex Discrimination – Direct . .

Cited by:

CitedMinistry of Defence v Fletcher EAT 9-Oct-2009
Injury to feelings
Where there is overlap between the basis of aggravated damages and compensation for injury to feelings, double counting . .
Lists of cited by and citing cases may be incomplete.

Employment, Damages, Discrimination

Updated: 08 May 2022; Ref: scu.174744