The Cadogan Hotel Partners Ltd v Ozog

An award for injury to feelings in discrimination proceedings is compensatory. It must reflect the actual hurt caused by the unlawful discriminatory acts, rather than punish the employer or reflect conduct which was not itself found discriminatory.

The proper Vento band depends on the claimant’s proved injury. An appellate tribunal may intervene where the Employment Tribunal has applied the wrong band on its own findings.

An Employment Tribunal cannot introduce a substantive new finding of fact when issuing written reasons for an oral judgment. Apart from an unusual and properly conducted recall or review, the oral judgment stands. A grievance requiring written form under the ACAS Code of Practice on Discipline and Grievances at Work 2009 was not established by findings that complaints had been made orally.

The claimant, a hotel waitress, succeeded before the London (Central) Employment Tribunal in claims of direct sex discrimination and sexual harassment. The Tribunal awarded compensation including £10,000 for injury to feelings and a 25% uplift for non-compliance with the ACAS Code of Practice on Discipline and Grievances at Work 2009.

The employer appealed only against remedy. It contended that the injury-to-feelings award was in the wrong Vento band and that the written reasons impermissibly changed the oral finding that the claimant had made only oral grievances. The appeal therefore concerned the proper assessment of compensatory injury to feelings and the status of materially different written reasons.

1. Appeal allowed. The £10,000 injury-to-feelings award was quashed and replaced by £6,600, comprising £6,000 plus the 10% uplift required by Simmons v Castle [2012] EWCA Civ 1039. The 25% ACAS uplift was also quashed.

2. The Tribunal had wrongly focused on the discriminatory acts and its disapproval of the employer’s response to the claimant’s complaints. That response had not been found to be a discriminatory act, and the Tribunal had rejected aggravated damages. Compensation for injury to feelings must instead address the injury actually caused by unlawful discrimination. It must not punish or deter an employer.

3. On the Tribunal’s findings, the claimant had been made uncomfortable and very uncomfortable, and had not been particularly traumatised. Those findings placed the case in the lower Vento band. The EAT would ordinarily defer to the Tribunal’s assessment, but intervention was justified because the Tribunal had used the wrong band. On the findings, no higher award was possible; the employer’s concession permitted substitution at the top of the lower band.

4. The Code envisaged that a formal grievance should be made in writing. The oral judgment found only oral complaints. The written reasons then introduced the substantive finding that the resignation email amounted to a written grievance. That was not a permissible alteration without a proper recall or review procedure and an opportunity for the parties to be heard. The Code was therefore not engaged on the Tribunal’s operative findings, so the uplift could not stand.

• Employment Appeal Tribunal: appeal allowed; the injury-to-feelings award was substituted and the ACAS uplift was quashed.
• London (Central) Employment Tribunal: held the employer liable for direct sex discrimination and sexual harassment, awarding £10,000 for injury to feelings and a 25% uplift under the ACAS Code of Practice on Discipline and Grievances at Work 2009.