HM Land Registry v McGlue (Sex Discrimination)

An appellate court should not interfere with an award for injury to feelings unless it is manifestly excessive or wrong in principle. The assessment must reflect the particular claimant’s subjective injury, with an appropriate margin for the tribunal’s evaluation.

Aggravated damages require conduct which, viewed objectively, is capable of aggravating the claimant’s sense of injustice and injury. They are compensatory, not punitive, and must not duplicate an injury-to-feelings award.

Compensation for discrimination should, so far as money can do so, place the claimant in the financial position she would have occupied absent the wrong. A proposed deduction for alternative earnings requires a factual basis.

The Employment Tribunal upheld Mrs McGlue’s indirect sex-discrimination claim arising from her exclusion from an early severance scheme while on a career break. It found that, but for the discriminatory criterion, she would have been selected for release.

At a remedies hearing, the Tribunal awarded £12,000 for injury to feelings, £5,000 aggravated damages and £71,710.95 financial compensation, being the severance payment she would have received. HM Land Registry appealed the remedies decision. It challenged the finding of intentional discrimination, the injury-to-feelings award, aggravated damages and the financial award.

The central issues were whether the awards were legally sustainable and whether continued employment required an offset against the payment lost through discrimination.

1. Appeal allowed in part. The appeal succeeded only against the £5,000 award of aggravated damages. The total award was reduced by that sum, with consequential adjustment of interest. The challenges to injury to feelings and financial compensation were dismissed.

2. The challenge to the finding that the discrimination was intentional did not require determination. Under section 65 of the Sex Discrimination Act 1975, the Tribunal had also made an unchallenged finding that it was just and equitable to award compensation even if discrimination had been unintentional. That alternative conclusion independently sustained compensation.

3. The £12,000 injury-to-feelings award was upheld. Such awards cannot be closely calculated and appellate intervention is confined to awards that are manifestly excessive or wrong in principle. The Tribunal was entitled to assess the claimant’s individual distress, including the misleading assurance that she remained eligible, the undisclosed criterion, and the failure to correct the discrimination. The award was within the middle range identified in Vento, [2003] IRLR 102, as revised in Da’Bell, [2010] IRLR 19.

4. The aggravated-damages award was wrong in principle. A tribunal must first identify objectively aggravating conduct which further injures feelings or aggravates the sense of injustice. The recognised categories are illustrative and require conduct of sufficient degree. Aggravated damages are not punitive, and a tribunal must avoid compensating the same conduct twice under injury to feelings and aggravated damages. The findings concerning the promotion of a manager, absence of apology and high-handed conduct did not meet the necessary threshold.

5. The financial award was upheld. The governing principle was to restore the claimant, so far as money can, to her but-for financial position. The Tribunal had found that she would have been selected for, and would have accepted, the severance scheme. Her continued employment did not itself eliminate that loss. No factual basis had been established for deducting hypothetical alternative earnings, and the Tribunal’s finding implicitly rejected any relevant offset.

• Employment Appeal Tribunal: Allowed the employer’s remedies appeal only in respect of aggravated damages. It reduced the award by £5,000 and otherwise dismissed the appeal.
• Employment Tribunal, Manchester: At the remedies hearing, awarded £12,000 for injury to feelings, £5,000 aggravated damages and £71,710.95 financial compensation. Reasons were delivered on 13 June 2011.
• Employment Tribunal, Manchester: On 3 February 2011, upheld the claimant’s indirect sex-discrimination claim.
• Earlier Employment Appeal Tribunal: In a decision handed down on 10 February 2012, dismissed the employer’s appeal concerning the claimant’s sex-discrimination claim.