Injury to feelings award in sex discrimination case: manifestly excessive? The EAT doesn’t think so

10 October 2016

Ms Majid, a student in her final year at law school, was employed by AA Solicitors. However, six weeks after the commencement of her employment, she was made redundant. Ms Majid bought a claim against her former firm and its principal, Mr Ali, alleging over 40 acts of sexual harassment, ranging from proposals of marriage by Mr Ali (who was already married) and cinema dates, to comments about installing a bed in the office, Ms Majid’s weight, and inappropriate touching.

Finding that Mr Ali was an older man who (being the only solicitor in his own firm) exercised a high degree of control over his employees, the Tribunal concluded that Mr Ali had abused his position. Ms Majid had been made to feel extremely uncomfortable by his conduct, and had suffered stress and anxiety, as well as other related health issues, as a result. Awarding Ms Majid injury to feelings in the sum of £14,000 (amongst other awards), the Tribunal noted that this fell within the middle Vento band, had been uplifted by reason of inflation on the basis of Da’Bell v NSPCC, and reflected a 10% uplift in light of Simmons v Castle.

Turning to these cases briefly: Vento v Chief Constable of West Yorkshire Police [2003] sets out the range of the awards which a Tribunal may make when assessing compensation for injury to feelings. There are three bands—lower, middle and upper—depending upon the severity of the injury in question.

The Vento bands were updated to reflect inflation in the case of Da’Bell v NSPCC [2010], with the lower band increasing to cover awards in the region of £600 - £6,000, the middle band covering awards of £6,000 - £18,000, and the upper band covering awards of £18,000 - £30,000.

In the subsequent case of Simmons v Castle [2012], the Court of Appeal held that in certain types of claims, the awards made could be increased by 10% (such that the middle Vento band, for example, would increase to £6,600 - £19,800) to reflect the fact that civil court claimants could no longer recover success fees and “after the event” insurance premiums from their opponents. Yet, there was some ambiguity as to whether or not this should apply to injury to feelings awards in the Employment Tribunal.

Back to Ms Majid’s case: on appeal, AA Solicitors sought to argue that the award of £14,000 for injury to feelings was “manifestly excessive”. Describing Mr Ali’s conduct as “no more than modestly obnoxious” and something which “might properly be characterised as gauche and insinuating rather than aggressive”, the firm claimed that the award of £14,000 was simply too much.

The EAT rejected this argument. It recognised “how humiliating it is for a worker to lose her job because she is not willing to play a sexually charged role allotted to her by her employer” and held that “the feelings of hurt and humiliation [Ms Majid suffered] at losing [her] job in such demeaning circumstances should not be downplayed”.

Whilst the EAT acknowledged that another Tribunal may have made a lower award and was entitled to do so, the award made in this case was appropriate. The EAT confirmed that it would only intervene in the most serious cases where the Tribunal had either made an award in the wrong Vento band entirely or where the award was on the borderline between two Vento bands and required re-consideration. Further, where there is evidence before the Tribunal of a rate of change in the value of money such that an award ought to take into account inflation (or indeed deflation) as per the case of Da’Bell, then the Tribunal can act on that evidence and adjust the Vento band ranges, as well as any award for injury to feelings, accordingly.

Case: AA Solicitors Limited v Majid [2016] UKEAT/0217/15

Further information

If you have any questions about the issues raised in this blog, please contact Francesca Lopez or any member of our employment team.

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