Employment tribunals must clearly explain the basis for aggravated damages awards in discrimination cases

Background

In Khans Solicitors v Kaiser, the claimant worked as a paralegal for the respondent, a firm of solicitors, from April 2019 until her dismissal in February 2021. Towards the end of her employment, the claimant had a period of sickness-related absences.

The claimant brought claims of unfair dismissal, disability discrimination and sex-related harassment. The tribunal found in her favour on complaints falling within each of those categories. It found that the respondent had discriminated against the claimant because of something arising in consequence of disability, failed to make reasonable adjustments and subjected her to sex-related harassment. The dismissal was found to be automatically unfair for asserting a statutory right to be paid.

At the remedy stage, the tribunal awarded the claimant almost £110,000. This included £25,000 for injury to feelings at the top of the middle Vento band, and a separate award of £5,000 in aggravated damages. The respondent appealed against the aggravated damages award and a minor element of the compensation relating to sick pay.

EAT decision

The Employment Appeal Tribunal (EAT) allowed the appeal and remitted the aggravated damages award to the same tribunal for reconsideration.

Aggravated damages are compensatory, rather than punitive, and form part of the compensation for injury to feelings. A tribunal must identify an additional aggravating factor, determine what further injury it caused and ensure that the same harm has not already been compensated through the general injury to feelings award. The focus must therefore be on the additional effect on the particular claimant, rather than simply the seriousness of the employer’s conduct.

The tribunal had not applied that approach. It identified aspects of the respondent’s conduct that could potentially be aggravating, but did not find that they caused any additional injury. Its reliance on the respondent’s status as a firm of employment solicitors also appeared punitive. Although an employer’s expertise may be relevant in an appropriate case, it does not justify aggravated damages without findings that it contributed to aggravating conduct which caused further injury.

The EAT noted that making a single injury to feelings award which reflects any aggravating features may sometimes be preferable, as this reduces the risk of double recovery.

Learning points for employers

Employers should take internal discrimination complaints seriously and investigate and address them appropriately. Trivialising a complaint or failing to take remedial action can amount to aggravating conduct, but an aggravated damages award will be justified only if that conduct caused additional injury beyond that already reflected in the injury to feelings award.

For more information or advice, please get in touch with Keren Felix in our Employment team.