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Aggravated damages

Aggravated damages may be awarded in some particularly serious cases of discrimination. Although, in theory, an award could be made in respect of indirect discrimination, it is more likely to be appropriate in cases of direct discrimination, harassment or victimisation. Such an award may be made not just in relation to the prohibited conduct itself, but also by reference to the respondent's handling of the matter (including the conduct of the employment tribunal proceedings), if this has aggravated the hurt to the claimant.
Aggravated damages are compensatory and will be appropriate only where the employer has behaved in a high-handed, malicious, insulting or oppressive manner. Aggravated damages have been awarded as a separate award or included in the overall figure for injury to feelings. However, the Court of Appeal in Scott v Commissioners of Inland Revenue [2004] IRLR 713 CA (decided under the now repealed Sex Discrimination Act 1975 and Disability Discrimination Act 1995) has now said that aggravated damages should not be amalgamated with damages for injury to feelings. The Vento bands (see Injury to feelings) apply to compensation for injury to feelings without the addition of any aggravated damages.

In Ministry of Defence v Meredith [1995] IRLR 539 EAT (argued under the Equal Treatment Directive (76/207/EEC)), the Employment Appeal Tribunal (EAT) held that in order for aggravated damages to be granted, two factors must be present, these being:
    • exceptional or cumulative conduct or motive in the course of committing the wrong; and 
    • intangible loss suffered by the complainant as a result of this conduct or motive.

Therefore, in a case where the claimant was unaware at the time of the discriminatory acts that the employer's conduct was unlawful, her injury to feelings could not be aggravated by the conduct. There has to be causal connection between the conduct and the loss.

However, the conduct of the employer following the act of discrimination can be taken into account, for example where the claimant had been the subject of continuing unfavourable treatment after the complaint.

In British Telecommunications plc v Reid [2004] IRLR 327 CA (decided under the now repealed Race Relations Act 1976), the Court of Appeal considered that the promotion of the alleged discriminator while the charges against him had not been determined could, in the circumstances, give rise to aggravated damages.

The employer's conduct can include the way the proceedings have been conducted. The employment tribunal in Bamber v Fuji International Finance plc [1996] ET/28081/94 (decided under the now repealed Sex Discrimination Act 1975) awarded £20,000 aggravated damages for a case that it stated to be "outside the existing scale of awards of aggravated damages". The respondents and their solicitors were criticised in severe terms by the tribunal in relation to the conduct of the litigation and in respect of the allegations made and rejected. In Zaiwalla & Co and another v Walia [2002] IRLR 697 EAT, the EAT upheld an award of aggravated damages of £7,500, which reflected the respondent's misconduct in defending sex discrimination proceedings under the now repealed Sex Discrimination Act 1975, as well as the manner of discrimination giving rise to the proceedings. The tribunal had found that the respondent had put a "monumental effort" into defending the proceedings to an "inappropriate" extent and that the defence of the proceedings was "deliberately designed…to be intimidatory and cause the maximum unease and distress to the [claimant]". The EAT said that there was no reason why aggravated damages should not be awarded by reference to conduct of the defence of proceedings in a discrimination case, although cases where such an award would be made would be few and far between.

In Bungay and others v Saini and others EAT/0331/10 (decided under the repealed Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660)), the EAT upheld an award of aggravated damages against Mr Bungay and Mr Paul (one of the other appellants) that took account of their post-employment conduct, the employment tribunal having "found a very clear connection" between their discriminatory behaviour during the employees' employment and their conduct in subsequently making an unfounded malicious complaint about the employees to the police.

In Ministry of Defence v Fletcher EAT/0044/09 (decided under the now repealed Sex Discrimination Act 1975 and the now revoked Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661)), the employer's conduct of the employment tribunal proceedings included cross-examining the employee about sexual harassment that it had already accepted had occurred, her early psychiatric history and the origin of her sexual orientation. The EAT held that the tribunal had not erred in considering that the employer's conduct of the proceedings in these respects was of "sufficient gravity to warrant an award of aggravated damages". In Ministry of Defence, the EAT also accepted that the employer's use of disciplinary sanctions to victimise the employee and its failure to provide appropriate redress procedures for her complaints could form the basis of an aggravated damages award, but it reduced the award from £20,000 to £8,000 to recognise the overlap with matters that were taken into account in the injury to feelings award of £30,000. In Commissioner of Police of the Metropolis v Shaw [2012] IRLR 291 EAT (a whistleblowing case), the EAT reaffirmed that aggravated damages should not contain a punitive element because they are compensatory only, being an aspect of compensation for injury to feelings rather than a wholly separate head of damages. The EAT disapproved comments made by Slade J in Ministry of Defence v Fletcher to the effect that "there can be a penal element in the award of aggravated damages".
In (1) Munchkins Restaurant Ltd (2) Moss v Karmazyn and others EAT/0359/09 (decided under the now repealed Sex Discrimination Act 1975), the EAT upheld an appeal against an aggravated damages award of £1,000 to each of the four claimants in respect of the conduct of the respondents' defence by their legal representative. The EAT noted that while the tribunal had declined to make an award of aggravated damages simply by reason of the respondents defending the case on its facts, it had stated that the respondents' representative had presented the case in a way that was high-handed, insulting and oppressive to the claimants. The EAT remitted the issue to the tribunal to consider whether or not the representative's behaviour, which had in any event been insufficiently identified, could be properly made the subject of a costs award rather than an aggravated damages award.

In St Andrews Catholic Primary School and others v Blundell EAT/0330/09 (decided under the now repealed Sex Discrimination Act 1975), taking into account matters such as the employer's deliberate course of conduct to force the claimant out of its employment and its "strenuous efforts on a number of fronts to criticise the [employee's] capabilities at the remedies hearing, notwithstanding the findings which had been made at the liability hearing", the EAT found that the tribunal had been fully entitled to make an award of £5,000 aggravated damages.

In Tameside Hospital NHS Foundation Trust v Mylott EAT/0352/09 & EAT/0399/10 (decided under the repealed Disability Discrimination Act 1995), the EAT stated that: "a finding of malice against a manager is a serious finding, which is not to be made lightly and which must be fully supported if made". Although the employment tribunal had been entitled to find that the manager in question had on occasions been "brusque and insensitive" its findings about her behaviour did not justify its decision to award aggravated damages. Nor could the manager's "dismissive" manner in giving evidence and her sometimes evasive answers support such an award.

In Browne v Central Manchester University Hospitals NHS Trust ET/2407264/07; ET/2405865/08; and ET/2408501/08 (a race discrimination case decided under the now repealed Race Relations Act 1976), the employment tribunal took account of the employer's failure to address seriously the employee's grievances and statistics showing that black employees were more likely to be dismissed than white employees, the lack of an apology and the employee's visible distress at the hearing when he was accused of making "spurious and opportunistic" complaints.

In HM Land Registry v McGlue EAT/0435/11, the EAT provided guidance on remedies for discrimination claims, including aggravated damages.

Exemplary damages

It appears that the only example of a discrimination case in which an award of exemplary damages has been made is at employment tribunal level. In Michalak v Mid Yorkshire Hospitals NHS Trust ET/1810815/08 (decided under the repealed Sex Discrimination Act 1975 and repealed Race Relations Act 1976), the employment tribunal made an award of £4,000 exemplary damages in respect of the abuse of power by servants of government in relation to the continued suspension of a hospital consultant. However, it seems that, the higher courts recognise that in principle, they could be awarded in any successful case of discrimination, harassment or victimisation, provided that the conditions for awarding such damages have been met.

Exemplary damages are damages designed to punish the wrongdoer rather than to compensate the claimant. They are currently available in limited cases where there is oppressive, arbitrary or unconstitutional action by the servants of the Government or where the defendant's conduct has been calculated by him or her to make a profit that may well exceed the compensation payable to the claimant. In Deane v London Borough of Ealing and another [1993] IRLR 209 EAT (decided under the now repealed Race Relations Act 1976), the Employment Appeal Tribunal (EAT) held that exemplary damages could not be awarded in a race discrimination case because exemplary damages could be awarded only for causes of action that existed before 1964 and the race discrimination legislation was not enacted until after this date. The same reasoning would apply to other discrimination claims. However, the House of Lords decision in Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29 (which was not a discrimination case, but was concerned with the tort of misfeance in a public office) means it is now uncertain whether or not exemplary damages could be awarded in appropriate discrimination cases. The House of Lords held that exemplary damages should not be restricted to causes of action for which they had been available before 1964. It did not expressly decide, however, whether or not exemplary damages should be available in discrimination cases. The EAT in Virgo Fidelis Senior School v Boyle [2004] IRLR 268 EAT (a whistleblowing case decided under the Employment Rights Act 1996) said that there is no reason in principle why exemplary damages should not be awarded in discrimination cases if the conditions in Rookes v Barnard [1964] AC 1129 HL are met. These conditions are that there was an oppressive, arbitrary or unconstitutional action by the servants of the Government, or the defendant's conduct was calculated by him to make a profit for himself.

In Ministry of Defence v Fletcher EAT/0044/09 (a case involving direct discrimination and harassment under the now repealed Sex Discrimination Act 1975 and victimisation under the revoked Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661)), the EAT set aside an award of exemplary damages for £50,000. It stated that, while the failure of the army to provide or operate procedures for redress of the employee's complaints was deplorable, it did not cross the high threshold of oppressive, arbitrary or contumelious conduct required for making an award of exemplary damages.

In Saiger v North Cumbria Acute Hospitals NHS Trust EAT/0325/10, the EAT allowed an appeal against the employment tribunal decision not to award exemplary damages in a race discrimination case because the tribunal, which appeared to be of the view that exemplary damages were compensatory rather than punitive, had approached the issue on the wrong basis. On the facts, the EAT stated that it "cannot ... say that this is necessarily a case in which exemplary damages may not be awarded, however difficult the argument might be".

Personal injury claims

The claimant may be awarded damages if he or she has suffered any personal injury as a result of the discriminatory action. These will be awarded as a separate head of compensation.

In Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] IRLR 481 CA, Abbanur Sheriff, a Muslim, was employed as an engineer and claimed that during his employment he had suffered racial harassment and abuse and as a result had had a nervous breakdown. He brought a complaint of race discrimination in the employment tribunal under the (now repealed) Race Relations Act 1976, which was settled.

Mr Sheriff subsequently brought a claim in the county court for damages for personal injury caused by the abusive treatment that he had received from the employer. The claim was struck out on the basis that it had already been compromised.

On appeal it was held that the employment tribunal had jurisdiction to award compensation by way of damages for personal injury including both physical and psychiatric injury caused by the statutory tort of unlawful discrimination. Accordingly, Mr Sheriff should have pursued his claim for personal injury damages as part of his employment tribunal proceedings. His appeal was unsuccessful because he had already settled those proceedings and the county court had no jurisdiction to hear a separate claim arising out of the same facts.

If a claimant can show that he or she has been discriminated against unlawfully and as a result has suffered a personal injury the employment tribunal may award compensation for it. The Court of Appeal in Essa v Laing Ltd [2004] IRLR 313 CA (decided under the now repealed Race Relations Act 1976) has confirmed that, at least in harassment cases, there is no need for personal injury to be reasonably foreseeable; it is enough to show that the discrimination caused the injury.

A claimant who does not claim damages in the employment tribunal will be barred from bringing a claim in the ordinary courts unless he or she first launches personal injury proceedings in the ordinary courts.

Some of the awards under this heading have been substantial. The tribunal in Stubbs v (1) Chief Constable of Lincolnshire Police and (2) Walker [1999] ET/38395/96 awarded £15,000 for injury to health assessed as moderately serious arising from a lengthy period of sexual harassment and discrimination of a police detective by her line manager. Ms Stubbs retired from the force for reasons of ill health and the force's consultant psychiatrist likened her condition to post-traumatic stress disorder. The tribunal also awarded £26,500 for injury to feelings. Stubbs was decided under the (now repealed) Sex Discrimination Act 1975.

In Fasipe v London Fire and Civil Defence Authority [2001] ET/2304129/98 (decided under the now repealed Race Relations Act 1976), it was found that the claimant had been subjected to race discrimination that caused him to suffer from a chronic adjustment disorder, a very similar condition to post-traumatic stress disorder. An award of £40,000 was made for injury to health. A further £25,000 (including aggravated damages) was awarded for injury to feelings. However, the award of compensation was set aside by the Employment Appeal Tribunal (EAT) (EAT/0042/00 and EAT/0573/01) when it allowed an appeal against the decision on liability. In doing so, the EAT commented that the awards for injury to feelings and psychiatric damage were excessive and fell outside the permissible brackets for comparable injuries as identified in ICTS (UK) Ltd v Tchoula [2000] IRLR 643 EAT (also decided under the now repealed Race Relations Act 1976) and the Judicial Studies Board "Guidelines for the assessment of general damages in personal injury cases".

A number of tribunals, including that in Stubbs, have referred to the Judicial Studies Board "Guidelines for the assessment of general damages in personal injury cases" in assessing damages for injury to health. This guidance is used by all judges in personal injury cases and, among other things, gives guidance on appropriate levels of award for different degrees of psychiatric illness and the factors to be considered in determining the appropriate level.

An employer "takes the victim as he finds him". In discrimination claims compensation is calculated more on the effect on the particular employee and less on the act of discrimination itself.

If the discrimination has a seriously adverse effect, for example it causes a nervous breakdown, it will not matter much that it might have affected another employee much less. Employers cannot therefore rely on any sort of "tariff" for particular acts of discrimination.

In Michalak v Mid Yorkshire Hospitals NHS Trust ET/1810815/08 (decided under the repealed Sex Discrimination Act 1975 and repealed Race Relations Act 1976), in addition to an injury to feelings award of £30,000, the employment tribunal awarded the employee compensation of £56,000 for "severe psychiatric damage".

In Browne v Central Manchester University Hospitals NHS Trust ET/2407264/07; ET/2405865/08; and ET/2408501/08 (a race discrimination case decided under the now repealed Race Relations Act 1976), the employment tribunal awarded the employee £13,000 for personal injury, which it assessed as being in the moderately severe category of the Judicial Studies Board guidelines.

Medical evidence, while advisable in some cases, is not essential for an employment tribunal to make an award for personal injury. In Hampshire County Council v Wyatt EAT/0013/16, the EAT stated that "in cases where there are issues as to the cause or divisibility of psychiatric or psychological harm suffered by a claimant, it is advisable for medical evidence to be obtained" adding that failure to do so risked a lower, or no, award. However, the EAT rejected the employer's argument that there is in effect a principle of law "that medical evidence is an absolute requirement or that an award cannot be made in the absence of expert medical evidence in every such case bar those of low-value".