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Injury to Feelings - What's It Worth?

on Friday, 28 June 2019.

When an employment tribunal awards compensation to a claimant for 'injury to feelings' in a discrimination claim, can that award be reduced if it is argued that the claimant's actions contributed in some way to the circumstances giving rise to the award?

In First Greater Western Limited & Linley v Waiyego, the Employment Tribunal (ET) considered this question and concluded that it would be a very rare situation in which an award for injury to feelings will be reduced because of contributory negligence. Mrs Waiyego had been on sick leave for a prolonged period of time and pursued several claims against her employer, First Greater Western Limited (FGW). The ET found in favour of Mrs Waiyego on two of her claims, the first of which was a failure by FGW to make reasonable adjustments, as there had been a significant delay in organising cognitive behavioural therapy (CBT) for Mrs Waiyego whilst she was on sick leave. The second finding related to unfavourable treatment because of something arising from disability, as Mrs Waiyego had not been consulted on the restructure of her team whilst she was on leave, when the rest of the team had been consulted. The ET awarded Mrs Waiyego compensation for loss of earnings, injury to feelings and psychiatric injury. Both parties appealed the result to the Employment Appeal Tribunal (EAT).

The Result

FGW argued that the award for injury to feelings should have been reduced because Mrs Waiyego had been partially to blame for the delay in her CBT as, it said, she had not given FGW the name of her cognitive behavioural therapist who she had previously visited. FGW also tried to argue that Mrs Waiyego had been awarded 'double recovery' in respect of non-financial loss, for example psychiatric injury and injury to feelings.

Claims of discrimination are brought under the Equality Act 2010 (EqA) and the EqA does not contain any provision for reducing compensation due to contributory negligence of the person bringing the claim. Contributory fault is relevant for other employment complaints - such as unfair dismissal. Although the Employment Appeal Tribunal (EAT) did consider that there are some discrimination cases where it would be possible to reduce an award because of the claimant's behaviour, this would be in rare cases only. This is because, the EAT held, that such a find presupposes that the victim has by blameworthy conduct, contributed or encouraged discrimination against themselves in some way. This would set a dangerous precedent in cases of sexual harassment, for example. The EAT therefore dismissed FGW's appeal.

Best Practice

It can be difficult to calculate what the potential awards might be for compensation in relation to discrimination claims. Injury to feelings awards are decided within bands of compensation (for further information on the bands please see our previous article), which consider whether the discrimination was a 'one-off' incident, whether it was 'particularly serious' or whether it was 'particularly serious' with a history of incidents. In this case, the claimant was awarded £19,800 in respect of the failure to make reasonable adjustments, and £8,800 relating to discrimination arising from disability. Despite the employer's appeal, and the arguments around contributory negligence, the employer was left with a significant liability in respect to the employees discrimination claims.

For more information please contact Mark Stevens in our Employment Law team on 0117 314 5401 or complete the form below. 

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