Lipton Group Ltd v Cudd (Sex Discrimination: Injury to feelings)

An Employment Tribunal commits a material error of law where it expressly relies on misstated judicial guidance when assessing injury-to-feelings compensation. The award must then be set aside if the error may have affected the assessment.

In assessing the proper award, the Vento bands should be applied to the whole discriminatory course of conduct. A series of discriminatory events leading to a justified resignation is not ordinarily analogous to an isolated or one-off act. Where pregnancy discrimination caused the resignation, compensation may include the injured feelings arising from the dismissal and loss of employment.

The Employment Tribunal at Watford found that Mrs Cudd had been constructively unfairly dismissed and subjected to pregnancy discrimination. It awarded £12,100 for injury to feelings arising from the discrimination.

Lipton Group Ltd appealed only the injury-to-feelings award. It contended that the Tribunal had materially misstated and relied upon the Judicial Studies Board Guidelines. The parties agreed that, if the appeal succeeded, the Employment Appeal Tribunal should substitute its own assessment.

The central issues were whether the error in referring to the guidelines required the award to be set aside, and the proper compensation for the discriminatory treatment.

1. Appeal allowed. The Employment Tribunal had expressly referred to Judicial Studies Board Guidelines, but had radically misstated the relevant figures. The Employment Appeal Tribunal had to infer that the Tribunal had relied on the material to which it referred. The misstatement was therefore a material error of law and required the £12,100 award to be set aside.

2. Judge Shanks re-assessed compensation by reference to the accepted findings about the claimant's distress and the history of the discrimination. Feelings arising directly from the claimant's difficult interaction with Miss Lipton before the discriminatory acts were excluded.

3. The employer's submission that feelings caused by the constructive dismissal and loss of employment should be excluded was rejected. The Tribunal's findings established a clear causal link between the pregnancy discrimination and the claimant's justified resignation. Those consequences could not realistically be divided from the discriminatory injury.

4. The award fell within the middle Vento band, not the lower band. The discrimination consisted of a series of events and led to dismissal, rather than an isolated act. Account was also taken of the absence of recognised psychological illness, medication, and the eight-and-a-half-month period of compensable suffering.

5. Having had regard to two non-binding Employment Tribunal awards for consistency, the Employment Appeal Tribunal substituted an award of £9,000 for injury to feelings. It did not determine whether the original award was manifestly excessive.

• Employment Appeal Tribunal: Allowed the employer's appeal and substituted an injury-to-feelings award of £9,000: [2015] UKEAT 0360_14_1902.
• Employment Tribunal, Watford: Its decision, sent on 18 November 2013, found constructive unfair dismissal and pregnancy discrimination and awarded £12,100 for injury to feelings.