Amy Smith and Laura Kaye have co-authored a summary of considerations for employers when dealing with aggravated damages in the ET.
Introduction
The Forstater case cannot have escaped the notice of employment lawyers over recent times. However, the remedy Judgment is often overlooked. With aggravated damages being awarded on top of the injury to feelings award, it seemed apt to review the relevant principles and offer our thoughts on how to avoid such an award being made in the Tribunal.
What are aggravated damages
The first point to note is that, interestingly, aggravated damages do not appear in the Equality Act 2010. The route of the award is tortious, and derives from the idea that a party ought to pay the other, for conduct that aggravates the injury to the other. So it is clear that aggravated damages are not punitive, but rather compensatory (HM Land Registry v McGlue EAT 0435/11, but with the strange exception of section 12 of the Employment Tribunals Act 1996). Punishment is dealt with by exemplary damages.
For aggravated damages, the conduct must have caused damage to the claimant (HM Prison Service v Salmon 2001 IRLR 425). Therefore, even if the employer has acted appallingly, unless the claimant is affected by the conduct there can be no award for aggravated damages.
In English and Welsh Employment Tribunals, the award for aggravated damages is considered separate to injury to feelings, albeit as a sub heading. The Scottish position is different (see D Watt (Shetland) Ltd v Reid EAT 0424/01). However, the line between the two can blur and it is important to: not create an overlap, avoid overcompensating claimants, and look at the overall amount to ensure it is proportionate to the impact on the claimant (Commissioner of Police of the Metropolis v Shaw 2012 ICR 464). A Tribunal is not bound by the Vento bands when considering the total award, but proportionality and fairness is the goal (Commissioner of Police of the Metropolis v Shaw 2012 ICR 464).
When can an award of aggravated damages be made
The usual starting point for any application for aggravated damages is the quote from Alexander v Home Office 1988 ICR 685: has the party behaved ‘in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination’. But Mr Justice Underhill has broken down the types of cases into three areas (Commissioner of Police of the Metropolis v Shaw 2012 ICR 464):
1. Where the way in which the wrong was committed was particularly upsetting.
2. Where there was a spiteful/discriminatory motive.
3. The subsequent conduct of the employer.
Types of behaviour that has resulted in an award of aggravated damages
The following is a list of conduct that has resulted in Tribunals making awards of aggravated damages. It is important to note that the conduct in each case was viewed as a whole:
- Publishing a statement after an employment tribunal loss stating: “The decision is disappointing and surprising because we believe Judge Tayler got it right when he found this type of offensive speech causes harm to trans people”. The Tribunal found that the statement “attributed” “a stronger criticism of the Claimant’s belief than the one he actually expressed”, and that it was “inflammatory in the context of this hotly contested area of debate to assert that a judge had found that the Claimant’s beliefs cause harm to people.”(Forstater v (1) CGD Europe (2) Centre for Global Development, (3) Masood Ahmed ET Case No.2200909/2019);
- Sharing a letter from employees to Pink News “caused further distribution of what had been said in the press release about harm to trans people and indicated that the Respondents’ organisation regarded the Claimant’s belief as amounting to “bigotry” (even though the EAT had held that it was protected) (Forstater v (1) CGD Europe (2) Centre for Global Development , (3) Masood Ahmed ET Case No.2200909/2019);
- Sending out a press release that implied a Judicial criticism of the Claimant that had not been made (Forstater v (1) CGD Europe (2) Centre for Global Development , (3) Masood Ahmed ET Case No.2200909/2019);
- The employer maintained a fabrication in the ET3 response (Base Childrenswear Ltd v Otshudi EAT 0267/18);
- The failure to conduct a grievance and internal appeal (Base Childrenswear Ltd v Otshudi EAT 0267/18);
- Failing to respond to requests for disclosure (Base Childrenswear Ltd v Otshudi EAT 0267/18);
- Changing the defence at the last minute to allege theft (Base Childrenswear Ltd v Otshudi EAT 0267/18);
- Failing to offer an apology (Commissioner of Police of the Metropolis v Shaw 2012 ICR 464; Palmer v East and North Hertfordshire NHS Trust ET Case No.1202802/09; Base Childrenswear Ltd v Otshudi EAT 0267/18; Desousa v Barrow t/a Southbourne Parts Garage ET Case No.310329/08).
- Behaving in a bullying manner over a long period of time (Driscoll v News Group Newspapers ET Case No.3202077/07).
- The employer keeping a discriminatory employee in their job and subsequently promoting them (British Telecommunications plc v Reid 2004 IRLR 327).
- Failure to take any action against a discriminatory employee (Commissioner of Police of the Metropolis v Shaw 2012 ICR 464; HM Prison Service v Salmon 2001 IRLR 425).
- Suggesting that an employee deal with their discriminatory colleague themselves (Simpson v BAA Airports Ltd ET Case No.2703460/09).
- Allowing a climate of racist abuse to continue (Simpson v BAA Airports Ltd ET Case No.2703460/09).
- Conducting half-hearted investigations (Simpson v BAA Airports Ltd ET Case No.2703460/09).
- Making unfounded and malicious allegations to the police (Bungay and anor v Saini and ors EAT 0331/10).
- Failing to respond in a timely manner to accusations (Desousa v Barrow t/a Southbourne Parts Garage ET Case No.310329/08).
- Calling witnesses to a Tribunal hearing to allege that the claimant’s motivation in bringing the claim was purely financial (Kirby v Quality Electrical Supplies and Technology Ltd and ors ET Case No.2412616/09).
- Contacting the claimant’s new employer to ask about her (Wade-Jones v CJ Upton and Sons Ltd ET Case No.1901127/09).
- Suggesting in cross-examination that the claimant was looking for work as a sex worker (Mazover and anor v Entico Corporation Ltd and ors ET Case No.2204534/13).
In what amount?
Underhill P in Shaw observed that the range of aggravated damages in the case list examples brought before the EAT were £5,000 - £7,500. However, no guidance was issued as to how Tribunals ought to approach the calculation of damages. It follows, therefore, that each case will turn on its own facts.
What can employers do
Before even seeing Tribunal pleadings, employers must ensure that they conduct internal processes with rigour. No allegations of discrimination ought to be ignored, and employees must not be left to fight it out for themselves. Investigations must be timely and reasons for delay must be explained and documented. It should be formal and where applicable, accord with any relevant Equality & Diversity policy. Documents and evidence gathered or relied upon in an internal process should be provided to the claimant in advance of any meetings. The claimant and any witnesses should be spoken to and notes ought to be taken, agreed and wherever possible signed by the author. A reasoned outcome is a must and ought to include an apology if conduct has been found to be discriminatory. In addition, if there are any delays or slip ups with the process, a simple apology goes a long way.
It is also important to consider the consequences that may be faced by an employee who is found to have committed an act of discrimination. Employers must act to show that they are not brushing the discriminator's actions under the carpet. If an employee admits or is found to have committed an act of discrimination, consider the training courses that the individual can be sent on. There is a wealth of external training providers, if the in-house training has already been delivered and has not had the desired effect. But more importantly, commence disciplinary action in accordance with internal policies and procedures. If a decision is taken not to discipline an employee for discriminatory conduct, employers must have an objectively good reason for it and it must be documented.
When drafting responses to claims, it is essential that a rigorous analysis takes place to ensure that the contents can be evidenced and reasonably argued. If serious allegations, such as theft, are to be made about a claimant, it is essential that there is significant evidence to support this. The same applies for any allegations that the Claimant is responsible for discriminatory conduct (particular in circumstances where the claim form accuses the employer). Any amendments to the pleadings ought to be done only if necessary and not as a transparent tactical move.
Disclosure requests must be considered seriously. If a party wishes to refuse disclosure of a certain document(s) they ought to provide a fully reasoned response to the other party.
Witnesses ought to be able to give relevant evidence which goes to the list of issues. If a party wishes to call “bad character” type witnesses to discredit the claimant, this ought to be analysed carefully. It should not be an attempt to hide the respondent’s indiscretions. Cross-examination is also a factor which needs to be given time and thought. Overly aggressive or vicious questioning, particularly about the claimant’s character, should be avoided unless absolutely necessary.
There are many schools of thought about the way a business conducts themselves in the press. And far be it for a couple of barristers with no marketing qualifications to speak on this point, but in today’s online world it is very easy for a tweet or Instagram story to be considered akin to a press release. It is often best to not speak at all about an ongoing, or even concluded, case, lest you say the wrong thing. The internet is forever. But if a business does wish to speak out about a concluded employment tribunal case, the less said the better.
Conclusion
Aggravated damages can sometimes come as a bit of a shock to employers, so it is important to remind ourselves that they are a feature of some discrimination cases. Most importantly employers need to think of their conduct and its potential impact from the very start of any case so as to ensure they are not caught out, as litigation progresses.
If you want to speak to Amy or Laura about an aggravated damages issue, please contact Julia Lanza in Chambers.